Case3:07-cv-02050-SC Document1 Filed04/11/07 Page1 of 31

1 Donald S. Edgar, Esq. (SBN 139324) 2 Jeremy R. Fietz, Esq. (SBN 200396)
Rex Grady, Esq. (SBN 232236) 3 EDGARLAWFIRM
408 College Avenue 4 Santa Rosa, California, 95401 5 Tel: (707) 545-3200 6 Fax: (707) 578-3040

7 Attorneys for Plaintiffs, MIGUEL A. CRUZ, and JOHN D. HANSEN,
8 individually and on behalf of all employees 9 similarly situated

10

UNITED STATE DISTRICT COURT

11 12

NORTHERN DISTRICT OF CALIFORNIA

J~

13
14 MIGUEL A. CRUZ, and JOHN D.
15 HANSEN, individually and on behalf of 16 all others similarly situated,

17

Plaintiffs,

18

19

v.

20

2050
COMPLAINT FOR DAMAGES, INJUNCTIVE RELIEF AND RESTITUTION
CLASS ACTION

21 DOLLAR TREE STORES, INC.,

22

Defendant.

DEMAND FOR JURY TRIAL

23

24

25

26

27

28

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1

CLASS ACTION ALLEGATIONS

2

l. Pursuant to Rule 23 of the Federal Rules of Civil Procedure, Public Law

3 109-2 (Class Action Fairness Act), and other relevant statutory and common 1;\\I's,

4 Plaintiffs, MIGUEL A, CRUZ and JOHN D. HANSEN, individually and on behalf of all

5 employees similarly situated, seek class-wide relief for pattcrns and practices ofuIliawful

6 conduct by Defendant, DOLLAR TREE STORES, INC ..

7

2. The proposed Class that the Plaintiffs seek to represent is composed of

8 current and former employees of Defendant DOLLAR TREE's stores within the State of

9 California, who have held the position of a salaried "store manager" at any time within

10 the last four years up to the date of trial. With respect to the Ninth Cause of Action, the

11 Class period is designated as beginning three years prior to the filing of this Cumplaint,

12 and extending until the date of trial.

13

3. The persons in the Class are so numerous that the joinder of all such

14 persons is impracticable, and the disposition of their claims as a Class will bCllefit the

15 parties and the court.

16

4. There is a weIl-defined commonality of interest in the questions oflaw and

17 of fact involving and affecting the class members to be represented in that all of these

18 employees have been harmed by the Defendant's failure to pay overtime wages by virtue

19 of Defendant illegally designating these employees as exempt in violatioll of the

20 California Labor Code and applicable Industrial Welfare Commission ("IWC") wage

21 orders and the Fair Labor Standards Act.

22

5. The claims of Plaintiffs alleged in this Complaint are typical of those

23 claims that could be alleged by any member of the Class, and the relief sought is typical

24 of the relief that would be sought by each member of the Class in separate actions. Each

25 member of the Class enjoys the legal presumption of non-exempt status. Each member

26 has been harmed in the same manner as all other Class members by being denied

27 overtime wages due to DOLLAR TREE's corporate-wide policies and practices.

28

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I

6. Plaintiffs will fairly and adequately represent and protect the interests of all

2 members of the Class. There are no known conflicts of interest between the namcd Class

3 representatives and Class members. If any conflicts do arise, other former and cutTent

4 Class members are available to serve as Class representatives.

5

7. The prosecution of separate actions by individual members of the Plaintiff

6 Class would create a risk of inconsistent and/or varying adjudications with respect to the

7 individual members of the Class, establishing incompatible standards of conduct fll!" the

8 Defendant and resulting in the impairment of Class members' rights and the disposition

9 of their interests through actions to which they were not parties.

10

8. Common issues predominate with respect to the employees' claims in that

11 all claims arise out of: (a) Defendant's unlawful designation of Class members as cxcmpt

12 employees; (b) the failure of Defendant to pay Class members overtime compensation for

13 hours worked in excess of eight (8) hours per day andlor forty (40) hours per week; (c)

14 Defendant's failure to issue accurate itemized wage statements; and (d) the Defendant's

15 failure to provide appropriate meal and rest breaks.

16

9. Proceeding in reliance on the Class form of action is superior to numerous

17 individual actions as a means of adjudicating those claims. Since the damages suffered

18 by individual Class members, while not inconsequential, may be relatively small, the

19 expense and burden of individual litigation by each member makes, or may make, it

20 impractical for Class members to seek redress individually for the wrongful conduct

21 alleged in this Complaint. Should separate actions be brought or be required to be

22 brought by each individual Class member, the resulting multiplicity of lawsuits would

23 cause undue hardship and expense for both the Court and the litigants. The prosecution

24 of separate actions would also create a risk of inconsistent rulings, which might be

25 dispositive of the interests of other Class members who are not parties to the

26 adjudications and/or may substantially impede their ability to adequately protect their

27 interests. Moreover, the Representative Plaintiffs are informed, believe and allege that

28 Defendant, in refusing to pay overtime, or grant meal and rest breaks, or issue accurate

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1 itemized wage statements, have acted and refused to act on grounds generally applicable

2 to all claims, thereby rendering injunctive and monetary relief for all members of the

3 Class an appropriate remedy.

4

10. Plaintiffs have retained adequate counsel. The counsel retained by

5 Plaintiffs are experienced and competent in both class action and employment litigation.

6

11. This Court has jurisdiction because the parties in the action are citizens of

7 different States (Constitution of the United States, Article III, Sec. 2), and because the

8 action is a Class Action wherein the requisite diversity of citizenship exists a11long the

9 parties and the matter in controversy exceeds the sum or value of $ 5,000,000, exclusive

10 ofinterest and costs (Public Law 109-2).

11

12

GENERAL ALLEGATIONS

13

12. At all times mentioned in this Complaint, Plaintiff MIGUEL A. CRUZ

14 (hereinafter identified as "Plaintiff CRUZ," or grouped with Plaintiff HANSEN as

15 "Plaintiffs") was an individual residing in the California County of Sonoma.

16

13. Plaintiff CRUZ worked at the DOLLAR TREE store in Healdsburg, in

17 Sonoma County, from approximately June 22, 2006 to January 12, 2007. While

18 employed at the Healdsburg store, Plaintiff CRUZ was classified by Defendant DOLLAR

19 TREE as a "Store Manager."

20

14. At all times mentioned in this Complaint, Plaintiff JOHN D. HANSEN

21 (hereinafter identified as "Plaintiff HANSEN" or grouped with Plaintiff CRUZ as

22 "Plaintiffs") was an individual residing in the California County of Sonoma.

23

15. Plaintiff HANSEN worked at the DOLLAR TREE store in Rohnert Park, in

24 Sonoma County from August of 2006 until April of 2007. While employed at the

25 Rohnert Park Store, Plaintiff HANSEN was classified by Defendant DOLLAR TREE as

26 a "Store Manager."

27

16. Plaintiffs bring this action on behalf of themselves, other employees of

28 Defendant DOLLAR TREE, and the general public, pursuant to California Business and

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1 Professions Code sections 17000 et seq. and 17200 et seq., in addition to Federal Rule of

2 Civil Procedure 23 and other relevant authorities.

3

17. At all times mentioned in this Complaint, Defendant DOLLAR TilliE

4 STORES, INC. ("DOLLAR TREE" andlor "Defendant") was and is a corporation

5 organized and existing under the laws of the State of Virginia and licensed to do business

6 in California, and was and is doing business at approximately two hundred (200)

7 locations in the State of California, including numerous locations in the County of

8 Sonoma.

9

18. At all times mentioned in this Complaint, Defendant DOLLAR TJ(EE was

10 and is engaged in the business of maintaining retail stores for the purpose of selling to the

11 general public discounted household products and miscellaneous merchandise.

12 Defendant operates approximately two hundred (200) such stores throughout the State of

13 California.

14

19. Each DOLLAR TREE store is located in a "district." Each district

15 comprises a number of stores. The stores where Plaintiffs worked lay in a district (hat

16 included approximately a dozen stores. Each district was and is overseen by a "district

17 manager." The district manager, in turn, is overseen by a "regional manager." Each

18 regional manager is answerable to individuals employed at DOLLAR TREE'S national

19 headquarters.

20

20. Eaeh store manager was paid a monthly salary. As "managers," each store

21 manager was, according to Defendant DOLLAR TREE, exempt from state and federal

22 laws mandating overtime wages, accurate itemized wage statements documenting

23 overtime hours earned, and meal and rest breaks. Store managers, however, were hardly

24 "managers," in that virtually all of their time was dedicated to perfonning regular hourly

25 employee tasks such as stocking shelves and cashiering. The amount of time spent by

26 each store manager supervising other employees, handling payroll, reordering product

27 and performing other tasks generally associated with "managing" was extremely small.

28 The time dedicated to "managing" by each store manager did not equal or exceed fifty

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1 percent (50%) of all time spent each week by each store manager in the employ of

2 DOLLAR TREE. By designating Plaintiffs and members of their Class as "store

3 managers," yet employing them to perform tasks identical to those performed by rank and

4 file wage earning employees, DOLLAR TREE was able to justify employing Plaillti[[s

5 and members of their Class for many hours in excess of forty (40) each week without also

6 compensating them at the pay rate mandated by state and federal laws, and without

7 providing them with meal and rest breaks in accordance with state law.

8

21. Usually, there were only one or two other employees in a given store for a

9 store manager to "supervise." Rarely would an hourly employee have to be talked to by a

10 store manager about work-related problems. Most conversations between a clore

11 manager (while acting as "manager") and regular hourly "employees" that did take place

12 had to do with overages or shortages discovered by the store manager at a particu18r cash

13 register. Store managers also handled most of the actual hiring of hourly employecs at

14 the store they were charged with "managing." The hiring process generally consistcd of

15 quickly reviewing a resume and making a phone call to tell someone they were hired and

16 when they should report for duty. When the newly hired hourly employee fIrst appeared

17 at the store to work, the store manager would provide him or her with "training."

18 Training consisted of the store manager telling the newly hired employee to begin

19 stocking shelves, how to scan a bar code on a product and how to press the appropriate

20 buttons on the cash register in order to register the sale and make change. Because of the

21 simplicity of the job requirements, training for any given new hourly employee took only

22 several minutes.

23

22. "Store managers" also handled the scheduling of employees. Scheduling of

24 employees, however, took no more than a half hour per week. Payroll was dictated by

25 the district manager, who regularly informed each store manager of that store manager's

26 store goals regarding overhead. The district manager would then admonish each store

27 manager to keep overhead low so as to attain the stated goal. District managers actually

28 informed each store manager how many hours to cut each week in order to reach the

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1 given goal. If the store manager failed to reach the goal, the store manager was

2 upbraided, chastised and subjected to discipline, including the threat of and actual

3 termination.

4

23. While managers were technically required to oversee the ordering of storc

5 product, ordering was virtually automatic. The maximum product level with respect lO

6 each product sold at a given DOLLAR TREE store was programmed into a comjJuter

7 tracking system by persons at the regional and district levels of the DOLLAR TilliE

8 hierarchy. This tracking system was linked to the scanners at a given store's cashier

9 stations. When a product item was scanned upon purchase at one of these cashier

10 stations, the total number of items in stock at that store was reduced by one. In this way,

11 it was always possible to know how many items of product were present in the slore, and

12 how much less this amount was than the maximum amount of product set for that item.

13 Several times per week store managers would push a button or click the mouse connected

14 to the computer tracking system to request that given products below the maximum

15 stocking levels set for those products be replenished. The manager would not nced to

16 calculate the number of units necessary to reach the maximum. The tracking system

17 would determine this. The request would be electronically sent to a supply dcpot at

18 another location, and the product, in the precise amount determined by the computer

19 tracking system, would be shipped to the store of the manager who made the request.

20

24. Each store manager remained (and remains) tightly constrained by the

21 instructions and oversight of their respective district's manager. District managers

22 regularly admonished store managers to cut payroll hours as a way of keeping overhead

23 low and maximizing net store profits. District managers did this in response to corporate

24 policy, with the knowledge that if payroll hours were cut, payment for overtime hours

25 would be avoided, and any slack in staffing would be picked up by the store manager,

26 who worked on salary and never accrued overtime. Each week, the district manager

27 would instruct store managers regarding how many hours were available to be staffed and

28 when and in what amount cuts in payroll would be necessary. District managers would

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1 also advise store managers when to order new product, and when to hire new employees

2 (though the actual hiring was done by store managers). Finally, district managers,

3 pursuant to corporate policy, instructed store managers never to be in their respcctive

.;. stores alone. Corporate policy required that store managers always be present willl at

5 least one other employee. In other words, each store manager's "managerial" dmractcr

6 was so debased (both objectively and in the view of DOLLAR TREE) that they wcre not

7 even trusted to be in the store by themselves.

8

9

FIRST CAUSE OF ACTION

10

FAILURE TO PAY OVERTIME WAGES

11

(California Labor Code Sections 203,204,215,216,226,

12

226.6, 510(a), 558, 1194, 1198 and/or 1199; IWC Wage Order 9 [revised])

13

25. Plaintiffs, individually and on behalf of all employees similarly situated,

14 restate, reallege, and incorporate by reference paragraphs 1 through 24 of this Complaint

15 as though fully set forth in the pleading of this First Cause of Action.

16

26. Pursuant to California Labor Code sections 203, 204, 215, 216, 226, 226.6,

17 510(a), 558, 1194, 1198, 1199, and certain Industrial Welfare Commission Wagc Orders,

18 it is unlawful in California for an employer to employ a person for longer than eight (8)

19 hours in a single day, or more than forty (40) hours in a single week, without paying a

20 person more than their regularly hourly rate of compensation.

21

27. At all times mentioned in this Complaint, California Labor Code § 5 10

22 provided that "any work in excess of eight (8) hours in one workday and any work in

23 excess of forty (40) hours in anyone workweek and the first eight (8) hours worked on 24 the seventh (7th) day of work in anyone workweek shall be compensated at the rale of no

25 less than one and one-half times the regular rate of pay for an employee." At all times

26 mentioned in this Complaint, IWC Wage Order No. 7-80 (revised) provided for paymcnt

27 of overtinJe wages equal to one and one-halftimes an employee's regular rate of pay for

28 all hours worked in excess of eight (8) hours per day and/or forty (40) hours in a single

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1 work week, and/or for payment of overtime wages equal to double the employee's 2 regular rate of pay for all hours worked in excess of twelve (12) hours in any workday 3 and/or for all hours worked in excess of eight (8) hours on the seventh (7th) day of work 4 in anyone work"week.

5

28. Defendant has intentionally and improperly designated certain employees,

6 including Plaintiffs and each member of their Class, as exempt store "managers" as a way

7 of avoiding the payment of overtime wages and other benefits in violation of California

8 Labor Code § 510, IWC Wage Order No. 7-80 (revised) and the guidelines set forth by

9 the California Division of Labor Standards and Enforcement (hereinafter "D.L.S.E.").

10

29. The job duties of Plaintiffs and each member of their Class do not fit the

II definition of either exempt executive or administrative employees as set forth in

12 California law and D.L.S.E. intelJlretations and opinion letters because:

13

a. Less than 50% of their work hours have been spent on exempt

14 managerial or administrative duties;

15

b. More than 50% of their work hours have been spent performing non-

16 exempt duties, including, but not limited to stocking shelves, providing customer service

17 and cashiering.

18

c. Plaintiffs and each member of their Class have not had (and do not

19 have) discretion or independent judgment as defined by the D.L.S.E. because they must

20 follow exacting and comprehensive company-wide policies that dictate virtually every

21 aspect of "managerial" operations, including, but not limited to merchandise display;

22 selection, purchasing and pricing of merchandise to be sold; employee hiring and

23 scheduling; procedures for receiving, stocking, processing and assembling merchandise;

24 and store layout and design.

25

d. Plaintiffs and each member of their Class cannot set wages of hourly

26 employees, and they cannot set policies or procedures that bind the cOlJloration.

27

e. Plaintiffs and each member of their Class have worked undcr the

28 direct and close supervision of Area Managers, District Managers, and Regional

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I Managers, each of whom prevent them from making independent decisions that affect the 2 store or the company as a whole.

3

30. Since commencing their employment with DOLLAR TREE, Plaintiffs and

4 each member of their Class have been required to regularly work in excess of eight (8)

5 hours per day and forty (40) hours per week. Furthermore, Plaintiffs and eaeh member of

6 their Class have been regularly required to work six days per week.

7

31. Under Labor Code § 510 and the provisions of IWC Order 7-80 (revised),

8 Plaintiffs and each member of their Class should have reeeived overtime wages in a sum

9 according to h'1e proof for hours worked during the four (4) years prior to the filing of this

10 lawsuit. Defendant owes Plaintiffs and eaeh Class member overtime wages, but has

11 failed and refused, and continues to fail and refuse, to pay Plaintiffs and each Class

12 member the amount owed.

13

32. Plaintiffs, individually and on behalf of those similarly situated, request

14 recovery of overtime compensation in an amount to be proven at trial, in addition to

15 interest, attorney fees, and costs pursuant to California Labor Code §§§ 218.5, 218.6 and

16 1194 (a), and California Code of Civil Procedure § 1021.5, as well as the assessment of

17 any statutory penalties against the Defendant as authorized and in accordance with

18 relevant sections of the Labor Code.

19

20

SECOND CAUSE OF ACTION

21

FAILURE TO PAY ALL UNPAID WAGES AT TIME OF TERMINATION

22

(California Labor Code sections 201 (a) and 202 (a»

23

33. Plaintiffs, individually and on behalf of all employees similarly situated,

24 restate, reallege, and incorporate by reference paragraphs I through 32 of this Complaint,

25 as though fully set forth in the pleading of this Second Cause of Action.

26

34. California Labor Code § 201 (a) provides, in part, "if an employer

27 discharges an employee, the wages earned and unpaid at the time of discharge are due 28 and payable immediately."

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1

35. California Labor Code § 202 (a) provides, in part, "if any employee not

2 having a written contract for a definite period quits his or her employment, his or her

3 wages shall become due and payable not later than 72 hours thereafter. .. ," subject to

4 certain conditions, none of which obviate the duty of the employer to tcnder the

5 employee all ;noney earned, yet unpaid, to the el:lployee.

6

36. At all times mentioned in this Complaint, Defendant willfully failed to pay

7 wages (including overtime wages) earned by Plaintiffs and many (if not all) members of

8 their Class upon the termination of their status as employees of Defendant.

9

37. California Labor Code § 203 provides, in part, "if an employer willfully

10 fails to pay, without abatement or reduction, in accordance with Sections 201, 201.5,202

II and 205.5, any wages of an employee who is discharged or who quits, the wag<2S of the 12 employee shall continue as a penalty from the due date thereof at the same rate until paid 13 or until an action therefore is commenced; but the wages shall not continue for more than 14 30 days. California Labor Code § 203 permits an employee to bring an action to recover 15 "these penalties at any time before the expiration of the statute of limitations on an action 16 for the wages from which the penalties arise."

17

38. Because Defendant willfully failed to pay all wages due PlaintilTs and

18 members of Plaintiffs' Class whose employment with Defendant was terminated,

19 Plaintiffs and Class members are entitled to recover all wages that should have been paid

20 to them, but which were not, at the time of termination, in addition to all penalties 21 authorized in Labor Code § 203.

22

23

THIRD CAUSE OF ACTION

24

FAILURE TO PROVIDE ACCURATE ITEMIZED WAGE STATEMENTS

25

(California Labor Code § 226 (a))

26

39. Plaintiffs, individually and on behalf of employees similarly situated,

27 restate, reallege, and incorporate by reference paragraphs 1 through 38 of this Complaint,

28 as though fully set forth in the pleading of this Third Cause of Action.

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1

40. California Labor Code § 226(a) provides that, at the time of each payment

2 of wages, an employer shall provide each employee with an accurate wage statement

3 itemizing, among other things, the total hours worked by the employee during the pay

4 period, all ap;llicable hourly rates in effect during the l'ay period, and the corre::punding

5 number of hours worked at each hourly rate by the employee.

6

41. At all times mentioned in this Complaint, Defendant paid no overtime

7 wages to Plaintiffs and members of their Class, even though Plaintiffs and members of

8 their Class earned these wages. The itemized wage statements issued to Plaintiffs and

9 members of their CI4s~, did nvt 2::C~::.te;:~ :eflect a;: "pp:icable hourly rates that should

10 have been in effect during the respective pay periods. Nor did these itemized wage

11 statements list the corresponding number of hours worked by Plaintiffs and members of

12 their Class at each applicable hourly rate. Instead, the itemized wage statements issued to

13 Plaintiffs and members of their Class reflected the reputed salary, without any indication

14 of the rate of pay applicable with respect to those hours worked in excess of eight (8)

15 hour per day and/or forty (40) per week.

16

42. In failing to receive accurate itemized wage statements from Defendant,

17 Plaintiffs and members of their Class suffered injury.

18

43. California Labor Code §226(e) provides, III part, that an empluyee

19 suffering injury as a result of a knowing and intentional failure by an employer to comply

20 with California Labor Code §226(a) is entitled to recover the greater of his actual

21 damages or a penalty of $50 for the initial pay period in which a violation occurs and

22 $100 for each violation in a subsequent pay period (up to a maximum of $4,000), in

23 addition to attorney fees and costs.

24

44. Defendant knowingly and intentionally failed to provide timely and

25 accurate itemized wage statements to Plaintiffs and each member of their Chlss in

26 accordance with California Labor Code § 226. The statements provided to Plaintiffs and

27 members of his Class did not (and do not) accurately reflect the actual gross wages they

28 earned or the total number of hours they worked.

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1

45. Because Defendant breached its duty pursuant to Lahor Code § 226(a),

2 Plaintiffs and members of their Class are entitled to the damages and penalties provided

3 for under Lahor Code § 226(e) and other relevant sections of the Lahor Code.

4

5

FOl:RTH CAlJSE OF ACTION

6

MEAL BREAK VIOLATIONS

7

(California Labor Code Sections 226.7 and 512 and IWC Wage Order 7-2001)

8

46. Plaintiffs, individually and on behalf of employees similarly situated,

9 restate, reallege, and incorporate by reference paragraphs 1 through 45 of this Complaint,

10 as though fully set forth in the pleading of this Fourth Cause of Action.

11

47. California Lahor Code § 512 (a) prohibits any employer from requiring any

12 employee to work for a "period of more than five hours per day without providing the

13 employee with a meal period of not less than 30 minutes, except that if the total work

14 period per day of the employee is no more than six hours, the meal period may be waived

15 by mutual consent of both the employer and employee." This law further prohibits the

16 employer from employing an employee "for a work period of more than 10 hours per day

17 without providing the employee with a second meal period of not less than 30 minutes,

18 except that if the total hours worked is no more than 12 hours, the second meal period

19 may be waived by mutual consent of the employer and the employee only if the first meal

20 period was not waived."

21

47. California Lahar Code §226.7 prohibits any employer from requiring any

22 employee to work during any meal period mandated by an applicable IWC Wage Order,

23 and mandates that an employer who fails to provide an employee with a required meal

24 period shall pay that employee one additional hour of pay at the employee's regular rate

25 of compensation for each work day in which the meal period is not provided.

26

48. Defendant was and is subject to the provisions of Lahar Code Sections

27 226.7 and 512 and an applicable IWC Wage Order. IWC Wage Order 7-2001, Subd.

28 Il(A) provides that: "No employer shall employ any person for a work period of more

than five (5) hours without a meal period of not less than 30 minutes... " Such meal

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1 breaks are unpaid only if: (1) such breaks are at least 30 minutes long; (2) the employee 2 is relieved of all duties; and (3) the employee is free to leave the work premises in order 3 to break.

4

49. Further, Subd. 1l(B) of IWC Wage Order 7-2001 reiterates the remedial

5 language of Labor CO~·2 ~ 226.7 by stating that if "an employer fails to provide an

6 employee a meal period in accordance with the applicable provisions of this ordcr, the

7 employer shall pay the employee one (1) hour of pay at the employee's regular rate of

8 compensation for each workday that the meal period is not provided." (Emphasis added).

9

50. Plaintiffs and members of their Class are informed, believe and allege that

10 for the four years preceding the filing of this action, Defendant often failed to provide

11 meal breaks to Plaintiffs, consistent with the provisions recounted in the preceding four

12 paragraphs. Plaintiffs routinely worked in excess often hours, but failed to receive their

13 appropriate meal breaks. They were not properly informed of their meal break rights, and

14 they never waived any of these rights. Instead of taking steps to ensure lhat the

15 employees were aware of their meal break rights and adopting reasonable procedurcs to

16 ensure that the breaks were actually taken, Defendant encouraged Plaintiffs and members

17 of the Plaintiff Class to work without availing themselves of their right to completely

18 cease work and have something to eat.

19

51. Throughout the four years immediately preceding the filing of this

20 Complaint, Defendant failed to pay Plaintiffs and Plaintiffs' Class Members any statulory

21 and/or regulatory one-hour pay penalty or wage for failing to provide meal brcaks as 22 required by law.

23

52. Under the provisions ofIWC Wage Order No.7, Plaintiffs and members of

24 their Class have suffered a loss of wages equaling one hour's wages, at their regular

25 hourly rates of pay, for all working days in which meal breaks were not properly

26 provided. The exact amount of loss suffered cannot presently be calculated, but likely

27 will be determined once time and payroll records are produced pursuant to discovery.

28

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1

53. Because Defendant failed to provide Plaintiffs and members of their Class

2 with meal periods as required by law, Plaintiffs and their Class are entitled to payment of

3 additional wages as provided by law.

4

5

fIFTH CAlJSE OF ACTIO:,

6

REST BREAK VIOLATIONS

7

(California Labor Code Sections 226.7 and IWC Wage Order 7-2001)

8

54. Plaintiffs, individually and on behalf of employees similarly situated,

9 restate, reallege, 2nd ;:;corporate by reference paragraphs 1 through 53 of this Complaint,

10 as though fully set forth in the pleading of this Fifth Cause of Action.

11

55. California Labor Code §226.7 prohibits any employer from requiring any

12 employee to work during any rest period mandated by an applicable IWC Wage Order,

13 and mandates that an employer who fails to provide an employee with a required rest

14 period shall pay that employee one additional hour of pay at the employee's regular rate

15 of compensation for each work day in which the rest period is not provided.

16

56. Defendant was and is subject to the provisions of Labor Code Section

17 226.7 and an applicable IWC Wage Order. IWC Wage Order 7-2001, Subd. 12(A)

18 provides that: "Every employer shall authorize and permit all employees to take rest

19 periods, which insofar as practicable shall be in the middle of each work period. The

20 authorized rest period time shall be based on the total hours worked daily at the rate of

21 ten (10) minutes net rest time per four (4) hours or major fraction thereof.... Authorized

22 rest period time shall be counted as hours worked for which there shall be no deduction

23 from wages." (Emphasis added)

24

57. Subd. 12(B) ofIWC Wage Order No.7 reiterates the remedial language of

25 Labor Code 226.7 by stating that "[iJf an employer fails to provide an employee a rest

26 period in accordance with the applicable provisions of this order, the employer shall pay

27 the employee one (1) hour of pay at the employee's regular rate of compensation for each 28 workday that the rest period is not provided." (Emphasis added)

- 15 Class Action Complaint For Damages, Injunctive Relief, Restitution

Case3:07-cv-02050-SC Document1 Filed04/11/07 Page16 of 31

1

58. Plaintiffs and members of their Class are informed, believe and allege that

2 for the four years preceding the filing of this action, Defendant rarely, if ever, provided

3 rest breaks, pursuant to the provisions above, to Plaintiffs and the other Class Members

4 when their daily work time exceeded three and one-half (3 'is) hours of work per day.

5

59. Ttroughout ,:;e [0'.:[ years i:nmedi"tely preceding the filing of this

6 Complaint, Defendant failed to pay Plaintiffs or other Class Members any statutory

7 and/or regulatory one-hour pay penalty for failing to provide rest breaks as required by 8 law.

9

60. Under the provisions of Wage Order No.7, Plaintiffs and the other Class

10 Members suffered a loss of wages equal to one hour's pay, at their regular rate of pay, for

II all work days in which rest breaks were not provided. The exact amount of loss suffered

12 by each Plaintiff and Class member cannot presently be calculated, but likely each

13 amount will be determined once time and payroll records are produced pursuant to 14 discovery.

15

61. Because Defendant failed to provide Plaintiffs and members of their Class

16 with rest periods as required by law, Plaintiffs and their Class are entitled to paymcnt of 17 additional wages as provided by law.

18

19

SIXTH CAUSE OF ACTION

20

UNFAIR COMPETITION AND UNFAIR BUSINESS PRACTICES

21 (California Business and Professions Code Sections 17000 et seq. and 17200 et seq.)

22

62. Plaintiffs, individually and on behalf of employees similarly situated,

23 restate, re-allege, and incorporate by reference paragraphs I through 61 of this

24 Complaint, as though fully set forth in the pleading of this Fifth Cause of Action.

25

63. Defendant is a "person" as defined under California Business and

26 Professions Code § 17021.

27

64. Each of the directors, officers and/or agents of DOLLAR TREE are equally

28 responsible for the acts of the others as set forth in California Business and Professions Code § 17095.

- 16 Class Action Complaint For Damages, Injunctive Relief, Restitution

Case3:07-cv-02050-SC Document1 Filed04/11/07 Page17 of 31

1

65. Defendant DOLLAR TREE operates stores in California that sell

2 discounted household items and other merchandise to the "public" as defmed in Busilless

3 and Professions Code §§ 17022 and 17024.

4

66. Plaintiffs are informed and believe that for the last four years, Defendant

5 has ::1tentional:y ar,d improperly designated them and members of the Class as

6 "managers" to avoid the payment of overtime wages and other benefits in violalion of

7 California Labor Code Sections 201, 203, 226 (a), 510, 512 and 1198, California Penal

8 Code §§ 484 (larceny) and 532 (obtaining labor through false pretenses), IWC Wage

9 Order No. 7-80 (revised), and the guidelines set forth by the Division of Labor StalH.Jards

10 Enforcement and the Industrial Welfare Commission, in addition to the standard imposed

II by the United States Congress following enactment of the Fair Labor Standards Act (29

12 U.S.C. § 201 et seq.).

13

67. Defendant's failure to pay required overtime wages to Plaintiffs and

14 members of their Class has resulted in Defendant DOLLAR TREE under-reporting to

15 federal and state authorities wages earned by Class members and, therefore, under-paying

16 state and federal taxes, employer matching funds, unemployment premiullls, Social

17 Security, Medicare, and workers' compensation premiums, in an amount according to the

18 proof at trial.

19

68. Defendant's failure to maintain records of hours worked, failure to pay

20 overtime wages, and their improper and arbitrary designation of Plaintiffs' Class of

21 employees as "managerial" is either unfair andlor an offense punishable by both statutory

22 fine and imprisonment for each violation. Defendant's acts constitute a continuing and

23 ongoing unfair and unlawful activity prohibited by California Business and Professions

24 Code sections 17200 et seq., and justify the issuance of an injunction, the making of

25 restitution and the imposition of other equitable relief pursuant to Business and

26 Professions Code § 17203, both as to DOLLAR TREE STORES, INC. and its managing

27 agents and officers.

28

- 17 Class Action Complaint For Damages, Injunctive Relief, Restitution

Case3:07-cv-02050-SC Document1 Filed04/11/07 Page18 of 31

1

69. As set forth below, Plaintiffs are infonned and believe that by

2 misclassifying Class members as "managers" and failing to pay overtime wages to the

3 members of the Class at each of DOLLAR TREE'S California stores, Defendant has

4 engaged in business within the State of California of selJing miscellaneous merchandise ,
5 ' to the V.;·~~i'" as ddir,ed in Bus;nESS ana Professions Code §§§ 17026, 17029, and i 7073,

6 for the purpose of injuring competitors andlor destroying competition in violation of

7 Business and Professions Code § 17043.

8

70. Plaintiffs are infonned and believe that Defendant has instructed and

9 directed its directors, officers, employees, andlor agents to intentionally and unlawfully

10 designate Class members as managerial employees to avoid payment of overtime wages

11 and corresponding employment taxes as a means of gaining an unfair advantage over

12 DOLLAR TREE'S competitors in violation of Business and Professions Code § 17047.

13 Specifically:

14

a. DOLLAR TREE corporate andlor California regional headquarters

15 limits the number of monthly payroll hours each store may allocate to employees to

16 perfonn necessary non-exempt tasks such as stocking, customer service, and customcr

17 sales. Such hours allocated to hourly employees are woefully inadequate to permit the

18 completion all necessary non-exempt duties in the stores by hourly employ'ees. As a

19 result, Class members are forced to work long hours perfonning non-exempt duties to

20 maintain required company standards and avoid disciplinary action. And while Class

21 members work these long hours, they are paid their straight salary, instead of legally

22 mandated overtime compensation.

23

b. DOLLAR TREE requires strict adherence to a policy forbidding

24 andlor highly discouraging hourly-paid workers to work overtime. Class members must

25 perfonn all non-exempt tasks not completed by hourly workers during their schcduled

26 hours. In so doing, they are paid nothing in excess of their straight monthly salary.

27

c. DOLLAR TREE frequently requires class members to cover for the

28 hourly employees when they go on their lunch break, or when hourly employees t,;all in

- 18 -
Class Action Complaint For Damages, Injunctive Relief, Restitution

Case3:07-cv-02050-SC Document1 Filed04/11/07 Page19 of 31

1 sick or are otherwise unavailable to report for duty. This practice frequently causes the

2 Class members to work in excess of eight (8) hours per day and forty (40) hours pcr

3 week. In so doing, they are paid nothing in excess of their straight salary.

4

d. Corporate policy mandates that Class members work six-day work

5 weeks ,,;. v<.rious times during ,he year and also requires class members to wOlk more

6 than eight (8) hours per week and forty (40) hours each week. In complying with this

7 policy, Class members are paid nothing in excess of their straight monthly salary.

8

e. Plaintiffs, and all other Class members, have been told by area

9 managers, district managers, regional managers, directors, officers and agents of

10 Defendant that they are "exempt" salaried employees and are not entitled to oveltime 11 compensation.

12

71. As a result of these acts and omissions by Defendant, the Plaintiffs, on

13 information and belief, allege that Defendant was able to unfairly compete with other

14 stores (particularly other discount stores) in the State of California by nol paying

15 overtime wages in violation of Business and Professions Code, §§ 17000 et scq. and

16 §§ 17200 et seq. Due to these unfair, fraudulent and/or unlawful business practices,

17 DOLLAR TREE has gained a competitive advantage over other comparable stores doing

18 business in the State of California.

19

72. The victims of these unfair and/or unlawful business practices include, but

20 are not limited to, the Class members and other employees of DOLLAR TREE,

21 competing stores in the State of California, and the consuming public. Plaintiffs are

22 informed, believe and allege that Defendant performed the above-mentioned acts with the

23 intent of gaining an unfair competitive advantage and thereby injuring Plaintiffs,

24 employees, other competitors, and the consuming public.

25

73. Each failure to pay overtime wages in violation of Business and

26 ProfeSSions Code § 17100 and other statutes is a crime punishable by both a statutory

27 fine and imprisonment. These failures constitute continuing and ongoing unlawful
28 activities prohibited by Business and ProfeSSions Code sections 17000 et seq. and 17200

- 19 Class Action Complaint For Damages, Injunctive Relief, Restitution

Case3:07-cv-02050-SC Document1 Filed04/11/07 Page20 of 31

1 et seq. and justify the issuance of an injunction. All such remedies are cumulative 2 pursuant to Business and Professions Code § 17205.

3

74. Pursuant to Business and Professions Code § 17203, Plaintiffs, on behalf of

-+ themselves and all members of their Class, request restitution andlor disgorgemenl of all

5 wages wrongfully retained by Defendant in violation of Business and Professions Code

6 sections 17000 et seq. and sections 17200 et seq. Furthermore, Plaintiffs request

7 attorneys' fees and costs pursuant to California Code of Civil Procedure § 1021.5, and

8 from the common law doctrine from which this statute is derived, upon a showing of

9 proof, a::long other things, that they have acted in the public interest and that a sigllificant

10 benefit has been conferred on the general public and/or a large class of persons, as set

11 forth in the Private Attorney General Act and the common law of this State. 12

13

SEVENTH CAUSE OF ACTION

14

FRAUD AND DECEIT

15

75. Plaintiffs, individually and on behalf of eaeh employee similarly situated,

16 hereby restate, reallege, and incorporate by reference herein, paragraphs 1 through 74 of

17 this Complaint, as though fully set forth in the pleadings of this Seventh Cause of Action.

18

76. Plaintiffs allege that the Defendant engaged in fraud and/or deceit against

19 Plaintiffs and each member of Plaintiffs' Class, and that Plaintiffs and each Class

20 member discovered that such acts were fraudulent within the last two and/or four years.

21

77. Plaintiffs, on information and belief, allege that Defendant DOLLAR

22 TREE, by and through its officers, human resource directors, regional managers, district

23 managers, area managers and others, for the last two and/or four years has known that the

24 Plaintiffs and members of their Class did not meet the legal requirements of exempt

25 employees and knew that the Plaintiffs and members of their Class could not be ordered

26 to work more than eight (8) hours per day or forty (40) hours per week without being 27 paid overtime. Specifically:
28

- 20Class Action Complaint For Damages, Injunctive Relief, Restitution

Case3:07-cv-02050-SC Document1 Filed04/11/07 Page21 of 31

1

a. Defendant regularly observed and required Plaintiffs and members

2 of their Class to perform non-exempt work, through periodic inspections and visits of

3 store locations by Area Managers, District Managers, and Rcgional Managers.

4

h. Defendant knew that Plaintiffs and members of their Class were

5 required to perfom.1 ·,l'.e work necessary to restock shelves and process customer

6 purchases. Despite this knowledge, Defendant refused to allocate sufficient labor hours

7 for non-exempt employees to complete these duties.

8

c. Defendant knew that Plaintiffs and members of their Class regularly

9 spent far less than fifty percent (50%) of their work time performing management duties,

10 since most store management functions were mostly controlled at the district, regional

11 and corporate levels, and the actual management duties performed at the store level--

12 including the writing of weekly work schedules and occasional training and coaching or

13 directing of staff-- only required a few hours per week to be adequately performed.

14

d. Defendant knew, or should have known, of the requirements of

15 California State and Federal laws pertaining to the requirements of overtime wages and

16 exempt status. More specifically, Defendant had been previously sued in California for

17 misclassifying its managers as "exempt" from overtime and, therefore, had specific

18 notice of the legal requirements necessary to justify classification of workers as 19 "exempt".

20

78. Despite possessing this knowledge, the Defendant suppressed facts and did

21 not disclose them to Plaintiffs and all other Class members. Defendant did this even

22 though they had a legal duty under the Labor Code, and IWC Wage Order 7-80 (rcvised)

23 to disclose the knowledge to Plaintiffs and members of their Class.

24

79. Through hiring interviews, meetings, inter-office memos, employment

25 forms, job descriptions, and other methods, Defendant has continuously represented to

26 Plaintiffs and members of their Class that, as managers, they are salaried or exempt

27 employees who can be required to work more than eight (8) hours per day and more than

28 forty (40) hours per week for a flat monthly salary, with no overtime compensation.

- 21 Class Action Complaint For Damages, Injunctive Relief, Restitution

" Case3:07-cv-02050-SC Document1 Filed04/11/07 Page22 of 31

1

80. When Defendant made these statements to Plaintiffs and members of their

2 Class, they knew the statements (particularly the assertion that no overtime pay was

3 required to be paid to the class members) were false.

of i

S1. These statements were purported by Defendant to be facts and weI~ made

5 for the purpose of inducing Piaintiffs and members of their Class to work in excess of

6 eight (8) hours per day and forty (40) hours per week without any expectation on their

7 part that they were entitled to receive compensation for overtime worked.

8

82. Plaintiffs, and each member of their Class, reasonably believed and relied

9 on Defendant's assertions that they were exempt employees who could be required to

10 work overtime without compensation.

11

83. In reliance on the assertions and to the detriment and prejudice of Plaintiffs

12 and each member of Plaintiffs' Class, Plaintiffs and members of their Class have worked

13 more than eight (8) hours per day and more than forty (40) hours per week, in violation of

14 IWC Wage Order 7-80 (revised) and the Labor Code, without being paid overtime.

15

84. As a direct result of the knowingly false assertions and the concealmcnt of

16 fact by the Defendant, Plaintiffs and members of their Class have earned, but have not

17 been paid, overtime wages, plus interest, in an amount to be proven at trial.

18

85. In addition to causing actual damages, the suppression of true facts and

19 assertion of false information was done with malice, oppression and/or fraud on the part

20 of the Defendant for the purpose of depriving Plaintiffs and members of their Class of

21 their legal property rights to overtime pay and to gain an unfair advantagc over

22 Defendant's competitors. Such acts were done with the authorization, ratification, and/or

23 advance knowledge of the officers and/or directors of DOLLAR TREE. Such acts,

24 committed with malice, oppression, and/or fraud, justify the awarding of punitive

25 damages to the Plaintiffs and each member of their Class in an amount commensurate

26 with the enormity of the wrongfulness of the acts themselves, for the purpose of

27 punishing the Defendant and deterring it from conducting itself in a similar fashion at any

28 time in the future.

- 22Class Action Complaint For Damages, Injunctive Relief, Restitution

Case3:07-cv-02050-SC Document1 Filed04/11/07 Page23 of 31

1

EIGHTH CAUSE OF ACTION

2

UNJUST ENRICHMENT/CONSTRUCTIVE TRUST

3

86. Plaintiffs, individually and on behalf of each employee similarly situated,

4 restate, reallege, and incorporate by reference paragraphs 1 through 85 of this Complaillt,

5 as though fuily set forth in the pleading of this Eighth Cause of Action.

6

87. By working for Defendant without appropriate pay, Plaintiffs and each

7 member of their Class conferred a substantial benefit on Defendant.

8

88. At the time the wages earned by Plaintiffs and the members of their Class

9 were due and payable by Defendant those unpaid wages became the property of Plaintiffs

10 and each members of their Class. By failing to pay all earned wages to the Plaintiffs and

11 each members of their Class when due, Defendant wrongfully and unjustly enriched itself

12 at the expense of Plaintiffs and each members of their Class.

13

89. Since Defendant has unjustly enriched itself at the expense of Plaintiffs and

14 the members of their Class, equity requires that Defendant be disgorged of lhat

15 enrichment, and that it be transferred to Plaintiffs and each member of their Class.

16

17

NINTH CAUSE OF ACTION

18

REQUEST FOR PRELIMINARY AND PERMANENT INJUNCTION

19

AND OTHER EQUITABLE RELIEF

20

90. Plaintiffs, individually and on behalf of each employee similarly situated,

21 restate, reallege, and incorporate by reference paragraphs 1 through 89 of this complaint,

22 as though fully set forth in the pleading of this Ninth Cause of Action.

23

91. Plaintiffs allege that if Defendant is not enjoined from the conduct set forth

24 in the preceding paragraphs of this Complaint, Defendant will continue to fail to pay

25 overtime wages to members of Plaintiffs' Class who do not meet the statutory and

26 regulatory exemption requirements. In addition, Defendant will continue to avoid paying

27 the appropriate taxes, insurance, and unemployment withholdings.

28

- 23 Class Action Complaint For Damages, Injunctive Relief, Restitution

Case3:07-cv-02050-SC Document1 Filed04/11/07 Page24 of 31

1

92. Plaintiffs request that the Court issue a preliminary and permanent

2 injunction prohibiting the Defendant from requiring Class members, who do not meet the

3 statutory and regulatory guidelines for exemption, from working more than cight (8)

4 hours a day and/or forty (40) hours in any work week without payment to them of

5 overtin~e wages.

6

93. Plaintiffs also request that the Court order the Defendant to pay restitution

7 to himself and members of his Class in the form of illegally retained earned overtime

8 wages and benefits, and to disgorge all illegally obtained profits arising from Defendant's

9 failure to pay government mandated taxes, state disability insurance premiullls, and

10 unemployment taxes.

11

TENTH CAUSE OF ACTION

12

UNLAWFUL FAILURE TO PAY OVERTIME WAGES

13

(29 U.S. § 200 et seq.)

14

94. Plaintiffs, individually and on behalf of all employees similarly situated,

15 hereby restate, reallege, and incorporate by reference paragraphs 1 through 93 of this

16 Complaint, as though fully set forth in the pleading of this Tenth Cause of Action.

17

95. At all relevant times, and during the three (3) year period immcdiatcly

18 preceding the filing of this Complaint, Plaintiffs and the members of their Class were

19 protected by 29 U.S.C. § 207 (a)(1), which is also known as the Fair Labor Standards

20 Act, or FLSA. 29 U.S.C. § 207 (a)(1) provides: "Except as otherwise provided ill this

21 section, no employer shall employ any of his employees ...for a workweek longer than

22 forty hours unless such employee receives compensation for his employment in excess of

23 the hours above specified at a rate which is not less than one and one-half times the

24 regular rate at which he is employed."

25

96. In the performance of their dllties for Defendant, Plaintiffs and the

26 members of their Class often labored in excess of forty hours per week without receiving

27 overtime compensation for that labor as required by the Fair Labor Standards Act. The

28 precise number of unpaid overtime hours wiII be proven at trial.

- 24-
Class Action Complaint For Damages, Injunctive Relief, Restitution

Case3:07-cv-02050-SC Document1 Filed04/11/07 Page25 of 31

1

97. Defendant has intentionally and improperly designated certain groups of

2 employees, including Plaintiffs and all members of their Class, as exempt "executive" or

3 "administrative" personnel. Defendant has done this in order to avoid the paymcnt of

4 overtime wages and other benefits in violation of29 U.S.C. § 207.

5

98. The jOJ cjuties of Plaintiffs hlld each member of PlaintitTs' Class did not,

6 and do not, fit the defmition of either exempt executive or administrative employces, as

7 set forth in federal statutory and common law, because:

8

a. Far less than 50% of their work hours have been spent on managerial

9 or administrative (exempt) duties;

10

b. Far more than 50% of their work hours have been spent performing

11 non-exempt duties, including, but not limited to stocking store shelves and processing

12 sales of store product to customers at in-store cashier or check-out stations.

13

c. Plaintiffs and members oftheir Class have, during all relevant limes,

14 never possessed discretion or independent judgment. Instead, they have been requircd to

15 follow exacting and comprehensive company-wide policies that dictate every aspect of

16 operations, including, but not limited to when, where and how merchandise will be

17 displayed; selection, purchasing and pricing of merchandise to be sold; how many hours

18 employees may be scheduled; procedures for receiving, stocking, processillg and

19 assembling merchandise; and store layout and design.

20

d. Plaintiffs and members of their Class cannot set wages of

21 employees, and cannot set policies or procedures which bind the corporation.

22

e. Plaintiffs and members of their Class work under the direct and close

23 supervision of several Area, District and Regional Managers and cannut make

24 independent decisions that affect their store or the company as a whole.

25

99. Since commencing their employment with Defendant, Plaintiffs and thc

26 members of their Class have been required to work between 41 to 60 hours per week.

27 Furthermore, Plaintiffs and the members of their Class have been required to work six

28 days per week at times.

- 25Class Action Complaint For Damages, Injunctive Relief, Restitution

Case3:07-cv-02050-SC Document1 Filed04/11/07 Page26 of 31

1

100. Under the provisions of 29 U.S.C. § 207, Plaintiffs and each membcr of

2 their Class should have received overtime wages in a sum to be proven at trial for all

3 hours worked during the applicable limitations period immediately prior to the filing of

4 this Complaint. Because Defendant failed to pay any oyertime wages to Plaintiffs fu'1d

5 each member of their Class, Plaintiffs and each member of his Class are entitled to

6 recovery all overtime wages which should have been paid, in addition to an equal amount

7 as liquidated damages, as prescribed in 29 U.S.C. § 216 (b).

8

101. Because Defendant has repeatedly and willfully violated § 207 of the Fair

9 Labor Standards Act, Defendant is subject to a civil penalty not to exceed $1,000 for

10 each violation. (See 29 U.S.C. 216 (e)). Plaintiffs and each member of their Class are

11 entitled to recover all civil penalties arising from Defendant's repeated and willful

12 violations of29 U.S.C. § 207.

13

102. Plaintiffs, individually and on behalf of employees similarly siluated,

14 request recovery of overtime compensation, liquidated damages, reasonable attorney fees

15 and costs, and the assessment of statutory penalties.

16

17

PRAYER FOR RELIEF

18 WHEREFORE, Plaintiffs, on behalf of themselves and all others similarly situated, pray

19 for relief and judgment against Defendant as follows:

20

21

FIRST CAUSE OF ACTION

22

1. For compensatory damages in an amount according to the proof

23 representing the amount of unpaid overtime compensation owed to the Plaintiff and each

24 member of his Class;

25

2. For interest on any overtime compensation due from the day such amounts

26 were due, as permitted in accordance with Labor Code § 218.6, Civil Code § 3289, and

27 other relevant laws of the State of California;

28

- 26Class Action Complaint For Damages, Injunctive Relief, Restitution

Case3:07-cv-02050-SC Document1 Filed04/11/07 Page27 of 31

1

3. For reasonable attorney's fees and costs in accordance with California

2 Labor Code § 1194, subdivision (a) and the Private Attorney General's Act (Code of 3 Civil Procedure § 1021.5);

, i

For all applicable statutory penalties, including those recoYerable pursuant

5 to Labor Code Sections 204 (a) and 2699 et seq.

6

5. For such other and further relief as the Court may deem just and

7 appropriate.

8

9

SECOND CAUSE OF ACTION

10

6. For payment of all wages not paid upon termination or discharge;

11

7. For all applicable statutory penalties;

12

8. For payment of interest on all wages that were due upon termination or

13 discharge pursuant to California Labor Code § 218.6, California Civil Code § 3289 and 14 other relevant laws of the State of California;

15

9. For attorney fees and costs pursuant to California Labor Code § 218.5,

16 California Code of Civil Procedure § 1021.5, and other relevant laws of the State of 17 California.

18

10. For such other and further relief as the Court may deem just and

19 appropriate.

20

21

THIRD CAUSE OF ACTION

22

11. For an order requiring Defendant to show cause, if any they have, why they

23 should not be enjoined from further violation of California Labor Code § 226 (a) during 24 and after the pendency of this action;

25

12. For payment to Plaintiffs and each member of Plaintiffs' Class the greater

26 of the following: $ 50 for each initial failure to comply with Labor Code § 226 (a) and

27 $100 for each subsequent failure, for a total amount not exceeding $ 4,000, or actual

28 damages suffered as a result of Defendant' s violation of Labor Code § 226 (a);

- 27Class Action Complaint For Damages, Injunctive Relief, Restitution

Case3:07-cv-02050-SC Document1 Filed04/11/07 Page28 of 31

1

13. For payment of attorney fees, and costs as provided for by California Labor

2 Code § 226(e) and all other applicable statutes.

3

14. For any Civil Penalties that may be recoverable pursuant to Labor Code

4 Sections 226.3 and 2699 et seq.

5 I

15. For such other and further relief as the Coun may deem jusl and

6 appropriate.

7

8

FOURTH CAUSE OF ACTION

9

16. For recovery of statutory penalties, in the amount subject to proof,

10 calculated at a rate of one additional hour of pay for each day a meal break was not 11 provided, for each member of the Class. 12

13

FIFTH CAUSE OF ACTION

14

17. For recovery of statutory penalties, in the amount subject to proof,

15 calculated at a rate of one additional hour of pay for each day a rest break was not 16 provided, for each member of the Class. 17

18

SIXTH CAUSE OF ACTION

19

18. For a preliminary and pennanent injunction prohibiting the Defendant from

20 requiring Class members to work more than eight (8) hours a day or forty (40) hours

21 in any workweek without payment of overtime wages;

22

19. For an order requiring Defendant to show cause, if any they have, why it

23 should not be enjoined as set forth herein, during the pendency of this action;

24

20. For a temporary restraining order, a preliminary injunction, and a

25 pennanent injunction, all enjoining Defendant from failing to pay overtime wages,

26 withholding taxes, matching funds, Social Security, Medicare, unemployment and

27 workers' compensation premiums as required by law and as it relates to their actual cost 28

- 28Class Action Complaint For Damages, Injunctive Relief, Restitution

Case3:07-cv-02050-SC Document1 Filed04/11/07 Page29 of 31

1 of doing business, such order being without bond pursuant to Business and Professions 2 Code§17081;

3

21. Restitution and disgorgement of all sums obtained in violation of Business

I
-t i! ::::nd Professions Code sections 17000 et seq. and 17200 et seq.

5

22. Fo, such other and further relief as the Court may deem just and

6 appropriate.

7

8

SEVENTH CAUSE OF ACTION

9

23. Actual damages, subject to proof at trial;

10

24. Punitive damages.

11

25. For such other and further relief as the Court may deem just and

12 appropriate.

13

14

EIGHTH CAUSE OF ACTION

15

26. For an Order requiring Defendant to restore to Plaintiffs and members of

16 Plaintiffs' Class all wages and other property withheld unlawfully by Defendant.

17

27. For such other and further relief as the Court may deem just and

18 appropriate.

19

20

NINTH CAUSE OF ACTION

21

28. For a preliminary and permanent injunction prohibiting the Defendant from

22 requiring class members to work more than eight (8) hours a day and/or forty (40) hours

23 in any workweek without payment of overtime wages;

24

29. For a preliminary and permanent injunction prohibiting the Defendant from

25 continuing to issue to members of the class inaccurate itemized wage statements, and to

26 correct all inaccurate statements previously issued during the four years prior to the filing 27 of this Complaint;

28

- 29Class Action Complaint For Damages, Injunctive Relief, Restitution

Case3:07-cv-02050-SC Document1 Filed04/11/07 Page30 of 31

1

30. For an order requiring Defendant to show cause, ifany they have, why they

2 should not be enjoined as set forth herein, during the pendency of this action;

3

31. For a temporary restraining order, a preliminary injunction, and a

- .. permanent injunction, all enjoining Defendant from failing to pay overtime wages,

5 withholding taxes, matching funds, Social Security, Medicare, unemployment and

6 workers' compensation premiums as required by law and as it relates to their actual cost

7 of doing business, such order being without bond pursuant to Business and Professions 8 Code section 17081;

9

32. Restitution and disgorgement of all sums obtained in violation of the

10 California Business and Professions Code § 17200 et seq., all relevant sections of the

11 California Labor Code, and all other relevant laws of the State of California.

12

33. For such other and further relief as the Court may deem just and

13 appropriate.

14

15

TENTH CAUSE OF ACTION

16

34. For damages in the amount of all unpaid wages earned by Plaintiffs and

17 each member of Plaintiffs , Class;

18

35. For liquidated damages in the amount of all unpaid wages earned by

19 Plaintiffs and each member of Plaintiffs' Class, as provided for in the Fair Labor

20 Standards Act;

21

36. For penalties in the amount of$ 1,000 for each of Defendant's repeated and

22 willful failures to pay overtime wages as required the Fair Labor Standards Act.

23

37. For such other and further relief as the court may deem just and

24 appropriate.

25 Dated: April 10, 2007
26
27 28

EDGAR LA W FIRM
By: dgar, Esq.
Jeremy . Fietz, Esq. Rex Grady, Esq.

- 30 Class Action Complaint For Damages, Injunctive Relief, Restitution

Case3:07-cv-02050-SC Document1 Filed04/11/07 Page31 of 31

1 2 3
1 "T
5 6 Dated: April 10, 2007 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

DEMAND FOR JURY TRIAL
EDGAR LA W FIRM By:
onald S. Edg , sq. Jeremy R. Fi tz, Esq. Rex Grady, Esq.

- 31 Class Action Complaint For Damages, Injunctive Relief, Restitution

 
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
KAUFF, MCC LAIN & MCGUIRE LLP
ONE POST STREET SUITE 2600
SAN FRANCISCO, CA 94104 TELEPHONE (415) 421-3111

MAUREEN E. McCLAIN (State Bar No. 062050) Email: mcclain@kmm.com ALEX HERNAEZ (State Bar No. 201441) Email: hernaez@kmm.com KAUFF McCLAIN & McGUIRE LLP One Post Street, Suite 2600 San Francisco, California 94104 Telephone: (415) 421-3111 Facsimile: (415) 421-0938
Attorneys for Defendant DOLLAR TREE STORES, INC.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA

MIGUEL A. CRUZ, and JOHN D. HANSEN, individually and on behalf of all others similarly situated,
Plaintiffs,
v.
DOLLAR TREE STORES, INC.,

CASE NO. C 07-02050 JL
DEFENDANT DOLLAR TREE STORES, INC.'S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS' COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

Defendant.

[Fed. R. Civ. Proc. 12(b)(6)]

DATE: TBD TIME: DEPT: JUDGE: Pending Assignment

COMPLAINT FILED: April 11, 2007

TRIAL DATE:

No date set.

TO PLAINTIFFS AND THEIR ATTORNEYS OF RECORD:

PLEASE TAKE NOTICE that on a date certain1 to be set by the United

States District Court for the Northern District of California, Defendant Dollar Tree Stores,

Inc. (“Dollar Tree”) will ask that, pursuant to Fed. R. Civ. Proc. 12(b)(6), the Court

dismiss Count VII (“Fraud and Deceit”) of the Complaint filed on April 11, 2007 by

1

Defendant has filed a Declination to Proceed Before a Magistrate Judge and Request for

Reassignment to a United States District Judge. Defendant has not selected a hearing date for

this motion because this action has not yet been assigned to a United States District Judge.

DEFENDANT DOLLAR TREE STORES, INC.'S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS' COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

CASE NO. C 07-02050 JL

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 KAUFF, MCC L A I N
& MCGUIRE LLP
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Plaintiffs Miguel A. Cruz and John D. Hansen (“Plaintiffs”). Count VII should be dismissed because Plaintiffs have not complied with the heightened pleading requirements of Fed. R. Civ. Proc. 9(b), which mandates that fraud be alleged with particularity.
The motion will be based upon this Notice of Motion and Motion and upon the Memorandum of Points and Authorities, the argument of counsel, the pleadings and papers filed herein, and any other matters properly considered by the Court.

DATED: May 9, 2007

Respectfully submitted, KAUFF McCLAIN & McGUIRE LLP

115533.v1

By:

/S/

ALEX HERNAEZ

Attorneys for Defendant DOLLAR TREE STORES, INC.

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DEFENDANT DOLLAR TREE STORES, INC.'S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS' COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

CASE NO. C 07-02050 JL

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MEMORANDUM OF POINTS AND AUTHORITIES I. RELIEF REQUESTED
Pursuant to Fed. R. Civ. Proc. 12(b)(6), Dollar Tree respectfully requests that the court dismiss Count VII for “Fraud and Deceit” because it is not pled with sufficient particularity as required by Fed. R. Civ. Proc. 9(b). II. RELEVANT FACTS
On April 7, 2007, Plaintiffs, both have been employed by Dollar Tree as Store Managers (¶¶ 12-13), filed their “Complaint for Damages, Injunctive Relief and Restitution.” The Complaint is styled as a putative class action and it alleges nine separate causes of action.1 The primary issue raised by Plaintiffs is whether they, as Store Managers, were classified correctly as “exempt” employees under state and federal law (¶ 8). III. ARGUMENT
Under California law, the elements of fraud, which gives rise to the tort action for deceit, are (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of fa lsity; (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage. Small v. Fritz Companies, Inc., 30 Cal. 4th 167, 173 (2003); see also Glen Holly Entertainment, Inc. v. Tektronix, Inc., 100 F. Supp. 2d 1086, 1093 (C.D. Cal. 1999).
"To survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), a complaint generally must satisfy only the minimal notice pleading requirements of Rule 8(a)(2)." Porter v. Jones, 319 F.3d 483, 494 (9th Cir. 2003). However, where, as here, “a complaint includes allegations of fraud, Federal Rule of

1

The nine Causes of Action are: Failure to Pay overtime (Count I); Failure to Pay Unpaid

Wages at Termination (Count II); Failure to Provide Accurate Itemized Wage Statements (Count

III); Meal Break Violations (Count IV); Rest Break Violations (Count V); Unfair Competition and

Unfair Business Practices (Count VI); Fraud and Deceit (Count VII); Unjust Enrichment /

Constructive Trust (Count VIII); and Equitable Relief including Preliminary and Permanent

Injunctions (IX).

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DEFENDANT DOLLAR TREE STORES, INC.'S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS' COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

CASE NO. C 07-02050 JL

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Civil Procedure 9(b) requires more specificity including an account of the time, place, and specific content of the false representations as well as the identities of the parties to the misrepresentations.” Swartz v. KPMG LLP, 476 F.3d 756, 764 (9th Cir. 2007) (internal citations and quotations omitted).
“To comply with Rule 9(b), allegations of fraud must be specific enough to give defendants notice of the particular misconduct which is alleged to constitute the fraud charged so that they can defend against the charge and not just deny that they have done anything wrong.” Id. Accordingly, “Plaintiff[s] must attribute false or misleading statements to a particular defendant and must set forth specific descriptions of the fraudulent representation. Allegations which are vague and conclusory are insufficient to satisfy Rule 9.” Campbell v. Allstate Ins. Co., 1998 U.S. Dist. LEXIS 12550 (C.D. Cal. 1998). Moreover, where the defendant is a corporation, the complaint should identify the particular agent, employee or officer accused of uttering the alleged misrepresentation. Swartz, 476 F.3d at 764; see also Herndon v. Scientific Applications Int'l Corp., 2006 U.S. Dist. LEXIS 79520 (S.D. Cal. 2006) (dismissing complaint where, inter alia, plaintiff did not identify the individuals who executed or negotiated the allegedly fraudulent contracts, billings, or certifications); United States ex rel. Man Tai Lam v. Tenet Healthcare Corp., 2006 U.S. Dist. LEXIS 95946 (W. D. Tex. 2006) (dismissing fraud claim against hospital where plaintiff failed to specifically identify the physicians accused of fraud).
Here, Count VII alleges two theories—first, that certain unnamed individuals “suppressed facts and did not disclose to Plaintiffs” that Plaintiffs were nonexempt under state and federal law (¶ 78); and second, that certain unnamed individuals incorrectly represented to Plaintiffs that Plaintiffs are exempt under state and federal law (¶ 79). The generality of these allegations cannot be reconciled with Rule 9(b)’s command that “the circumstances constituting fraud or mistake shall be stated with particularity.”

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DEFENDANT DOLLAR TREE STORES, INC.'S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS' COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

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Instead of specifically “identifying the parties to the misrepresentation,” Plaintiffs state only that Dollar Tree acted “through its officers, human resource directors, regional managers, district managers, area managers, and others” (¶ 77) (emphasis added). This open-ended list is insufficient on its face. Indeed, the inclusion of the phrase “and others” renders the pleading worthless to Dollar Tree. In order “to defend against the charge and not just deny that it has done anything wrong,” Dollar Tree must know who Plaintiffs believe “possessed knowledge of wrongdoing” and improperly “suppressed” this knowledge (¶ 78). Likewise, it must know who Plaintiffs believe made the supposedly “continuous” false representations (¶ 79).
Nor does the Complaint include “an account of the time, place, and specific content of the false representations.” Swartz, 476 F.3d at 764; see also Edwards v. Marin Park, Inc., 356 F.3d 1058, 1066 (9th Cir. 2004) (To avoid dismissal under Rule 9(b), Plaintiffs’ Complaint must "state the time, place, and specific content of the false representations."). Instead, Plaintiffs include a single summary of their theory (¶ 79) and then another open-ended list of places where presumably some variation of this statement was uttered—i.e., “[t]hrough hiring interviews, meetings, inter-office memos, employment forms, job descriptions, and other methods” (¶ 79)(emphasis added). Plaintiffs do not even attempt to carry their “time, place and content” pleading burden. And, as previously explained, the inclusion of the ambiguous “and other methods” phrase renders this a llegation of no value to Dollar Tree.
Finally, to the extent that Plaintiffs rely on supposedly fraudulent assertions contained in documents such as “inter-office memos, employment forms [and] job descriptions” (¶ 79), Dollar Tree is entitled to a comprehe nsive list thereof. E.g., Behrman v. Allstate Life Ins. Co., 2005 U.S. Dist. LEXIS 7262 * 9 (S. D. Fla. 2005) (affirming dismissal of fraud claim where plaintiff failed to identify “the specified documents or oral representations in which such statements or omissions were allegedly made”); see also Marin Park, Inc., 356 F.3d at 1066 (affirming dismissal of fraud claim

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DEFENDANT DOLLAR TREE STORES, INC.'S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS' COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

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where plaintiff failed to “attach the [allegedly fraudulent] notices to her complaint or to any other filing in this case”).

IV. CONCLUSION For the foregoing reasons, the court should dismiss Count VII pursuant to
Fed. R. Civ. proc. 12(b)(6).

DATED: May 9, 2007

Respectfully submitted, KAUFF McCLAIN & McGUIRE LLP

By:

/S/

ALEX HERNAEZ

Attorneys for Defendant DOLLAR TREE STORES, INC.

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DEFENDANT DOLLAR TREE STORES, INC.'S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS' COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

CASE NO. C 07-02050 JL

 
 Case3:07-cv-02050-SC Document16 Filed06/08/07 Page1 of 18

1 Donald S. Edgar, Esq. (SBN 129324) Jere1l!y R. Fietz, Esq: (SBN 200396)
2 Rex Grady, Esq. (SBN 232236) EDGAR LAWF1RM
3 408 College Avenue Santa Rosa, California 95401
4 Tel: (707) 545-3200 Fax: (707) 578-3040
5 Attorneys for Plaintiffs,
6 MIGUEL A. CRUZ and JOHN D. HANSEN, individually and on
7 behalf of others similarly situated

8

9

UNITED STATES DISTRICT COURT

10

NORTHERN DISTRICT OF CALIFORNIA

11

12 MIGUEL A. CRUZ and JOHN D. HANSEN, individually and on behalf of
13 all others similarly situated,

CASE NO. 07-02050 SC CLASS ACTION

14

Plaintiffs,

15

vs.

OPPOSITION TO DEFENDANT DOLLAR TREE STORE INC.'S MOTION TO DISMISS

16 DOLLAR TREE STORES, INC.,
17 Defendants.
18

Honorable Judge Samuel Conti Courtroom 1, 17th Floor

19

Time: 10:00 a.,m., June 29, 2007

20

21

22

23

24

25

26

27

28

Plaintiffs' Opposition To Motion To Dismiss Case No. 07-02050 SC

Case3:07-cv-02050-SC Document16 Filed06/08/07 Page2 of 18

1

TABLE OF CONTENTS

2

3

I. INTRODUCTION ......................................................................p. 1.

4

II. ARGUMENT .............................................................................p. 2.

5

A. WHAT RULE 9 REQUIRES ...........................................................p. 2.

6

B. WHAT PLAINTIFFS HAVEACTUALLYPLED ..................................p. 5.

7

C. PLAINTIFFS HAVE SATISFIED THE HEIGHTENED

8

PLEADING REQUIREMENT BY PROVIDING SUFFICIENT

9

INFORMATION AS TO THE DETAILS OF THE DEFENDANT'S

10

FRAUD ...................................................................................p.l0.

11

III. CONCLUSION.........................................................................p. 14.

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

11
Plaintiffs' Opposition To Motion To Dismiss Case No. 07-02050 SC

Case3:07-cv-02050-SC Document16 Filed06/08/07 Page3 of 18

1

TABLE OF AUTHORITIES

2

Statutory Authority

3 Fed. Rule of Civ. Proc. 8, ...................................................................p. 2

4 Fed. Rule ofCiv. Proc. 9 (b), ................................................pp. 1, 10, 11, 13

5 Fed. Rule ofCiv. Proc. 12 (b)(6), ..........................................................p. 1

6

7

Common Law Authorities

8 Bly-Magee v. California, 236 F.3d 1014, 1019 (9th Cir.2001), ........................ p. 4

9

Chicago, Milwaukee & St. Paul Railway Co. v. Minnesta (1890)

10

134 U.S. 418, 10 S.Ct. 462, ...................................................p. 10

11

Dartmouth College v. Woodward (1819) 17 U.S. 518,4 Wheat. 518, ............... p. 10

12

Seville Indus. Machinery Corp. v. Southmost Machinery Corp.,

13

742 F.2d 786, at 791, (3 Cir., 1984), ..........................................p. 4

14

Swartz v. KPMG LLP 476 F.3d 756, at 764 (9th Cir.2007), ............................p. 4

15

16

17

Secondary Authorities

18 Federal Civil Rules Handbook 2005, ..................................................pp. 1, 2

19

Prosser, Handbook on the Law o/Torts (4th ed., 1971), ..................................p. 8

20

Prosser and Keeton on Torts (5th ed., 1984), ..............................................p. 8

21

22

23

24

25

26

27

28

111
Plaintiffs' Opposition To Motion To Dismiss Case No. 07-02050 SC

Case3:07-cv-02050-SC Document16 Filed06/08/07 Page4 of 18

1

Ie INTRODUCTION

2

Defendant alleges that Plaintiffs' complaint is not particular enough in regard to its

3 cause of action for fraud. In this allegation, Defendant is wrong.

4

The Plaintiffs dedicated thirteen paragraphs of their complaint to describing the

5 Defendant's business operations, the manner in which the Defendant treated its so-called

6 "store managers," and how these managers were virtually indistinguishable from rank

7 and file employees. The Plaintiffs also dedicated at least nine additional paragraphs to

8 describing how the hiring and treatment of the Plaintiffs and their Class was part of a

9 fraudulent scheme to exploit the Plaintiffs and their Class by having them work long

10 hours without overtime compensation, and convincing them (via this conduct) that they

11 were not entitled to such compensation. The Plaintiffs have explained that the scheme

12 was one that was devised by the corporation, a legal person, that the scheme was in effect

13 throughout the four year period that is covered in the Complaint, and that the fraud at the

14 base of the scheme was committed essentially by conduct. This fraud was perpetrated by

15 Defendant through the treatment of the Plaintiffs and their class of "Store Managers" as

16 exempt from overtime and the payment to them of salaries that remained fixed no matter

17 how many hours in excess of forty per week they worked. The Plaintiffs have explained

18 that the Defendant was aware of the standard they were required to uphold. Defendant

19 was aware of it simply on account of the general requirement that knowledge of the law

20 is imputed to all persons (including corporations) within the jurisdiction of this State,

21 and, more precisely, because Defendant had been sued by a similar class of "store

22 manager" plaintiffs a number of years ago for the same misclassification of that class as

23 "exempt" from overtime.

24

Plaintiffs have satisfied the heightened pleading requirements of Rule 9(b) of the

25 Federal Rules of Civil Procedure. They have gone well beyond a mere recitation of the

26 elements of fraud. Because of the detail articulated in Plaintiffs Complaint, the

27 Defendant has been alerted to the precise misconduct with which they are charged, and

28

1
Plaintiffs' Opposition To Motion To Dismiss Case No. 07-02050 SC

Case3:07-cv-02050-SC Document16 Filed06/08/07 Page5 of 18

1 they are more than capable now of fashioning an appropriate answer and preparing

2 appropriate discovery in response. Consequently, Defendant's Motion should be denied.

3

n ARGUMENT

4

A. WHAT RULE 9 REQUIRES

5

Federal Rule 9 states: "in all averments of fraud or mistake, the circumstances

6 constituting fraud or mistake shall be stated with particularity." On its face, what this

7 Rule means is that those alleging fraud must go beyond a mere accusation that a

8 Defendant violated the several elements of fraud. In other words, a Plaintiff must

9 generate a pound or two of factual flesh to cover the bare bones of the pleading.

10

Because it is a general rule, lacking particularity, Congress left the door open to

11 the Courts to more precisely define what constituted appropriate pleading when a

12 Plaintiff alleged fraud in the circumstances of each particular case. As noted by the

13 authors of the Federal Rules handbooks, the Courts have indeed filled in the gaps in

14 Congress' language, as well as explained the purpose of the Rule itself. The Courts have

15 determined that "requiring that such claims be pled with particularity: (1) ensures that the

16 defendants have fair notice of the plaintiff s claim, (2) helps safeguard the defendants

17 against spurious accusations, and the resulting reputational harm, (3) reduces the

18 possibility that a meritless fraud claim can remain in the case, by ensuring that the full

19 and complete factual allegation is not postponed until discovery, and (3) protects

20 defendants against "strike" suits." (Federal Civil Rules Handbook 2005, p. 270).

21

The Courts have provided further guidance on what is required of those who

22 would plead fraud. "When pleading fraud the claimant must allege more than mere

23 conclusory allegations of fraud or the technical elements of fraud." (Jd.). The Courts

24 have stated that:

25

26

the amount of particularity or specificity required for pleading fraud

27

or mistake will differ from case to case, but generally depends upon

28

the amount of access the pleader has to the specific facts,

2
Plaintiffs' Opposition To Motion To Dismiss Case No. 07-02050 SC

Case3:07-cv-02050-SC Document16 Filed06/08/07 Page6 of 18

1

considering the complexity of the claim, the relationship of the

2

parties, the context in which the alleged fraud or mistake occurs, and

3

the amount of specificity necessary for the adverse party to prepare a

4

responsive pleading. (Jd., at p. 272 (emphasis added)).

5

6

The Court's have been careful to point out:

7

[t]he particularity requirement of Rule 9 is not... intended to abrogate 8

or mute the Rule 8 "notice" pleading standard that applies in federal 9

courts, and the two Rules must be read in harmony with one another. 10

Plaintiffs are still obligated to plead only notice of a fraud or mistake 11

claim; Rule 9(b) simply compels a higher degree of notice. Thus, 12

13

Rule 9(b) generally requires the pleader to fill-in "the first paragraph

14

of any newspaper story"-the "who, what, when, where, and how"

15

of the alleged scheme. In the context of fraud claims, many courts

16

require the pleader to allege (1) the time, place, and contents of the

17

false representations or omissions, and explain how they were

18

fraudulent, (2) the identity of the person making the

19

misrepresentations, (3) how the misrepresentations misled the

20

plaintiff, and (4) what the speaker gained from the fraud. (Jd.).

21

22

The degree and style of the information required to satisfy the heightened pleading

23 requirement indeed varies from cases to case. As described by the Third Circuit:

24

25

Rule 9(b) requires plaintiffs to plead with particularity the

26

"circumstances" of the alleged fraud in order to place the defendants

27

on notice of the precise misconduct with which they are charged,

28

and to safeguard defendants against spurious charges of immoral and

fraudulent behavior. It is certainly true that allegations of "date,

3

Plaintiffs' Opposition To Motion To Dismiss Case No. 07-02050 SC

Case3:07-cv-02050-SC Document16 Filed06/08/07 Page7 of 18

1

place or time" fulfill these functions, but nothing in the rule requires

2

them. Plaintiffs are free to use alternative means of injecting

3

precision and some measure of substantiation into their allegations

4

of fraud.... The complaint [before the court] sets forth the nature of

5

the alleged misrepresentations, and while it does not describe the

6

precise words used, each allegation of fraud adequately describes the

7

nature and subject of the alleged misrepresentation. (Seville Indus.

8

Machinery Corp. v. Southmost Machinery Corp., 742 F.2d 786, at

9

791, (3 Cir., 1984)).

10

11

The 9th Circuit has highlighted the root purpose of the rule thusly:

12
To comply with Rule 9(b), allegations of fraud must be specific 13
enough to give defendants notice of the particular misconduct which 14
is alleged to constitute the fraud charged so that they can defend 15
against the charge and not just deny that they have done anything 16
wrong. (Swartz v. KPMG LLP 476 F.3d 756, at 764 (9th Cir.2007); 17
citing Bly-Magee v. California, 236 F.3d 1014, 1019 (9th Cir.2001) 18
(internal quotations omitted)).l 19

20 Defendants in this case cannot credibly assert, in the face of the very detailed
21 Complaint in this case, that Plaintiffs have pled mere conclusory allegations. Defendants
22
in this case cannot credibly assert that they do not understand the nature of Plaintiffs' 23
claims or the fraud alleged, and cannot adequately respond. 24
/ 25
/ 26

27 I It is worth noting that the Court's greatest expression of concern in the Swartz case was that
28 there were multiple defendants and the complaint failed to identify which of the defendants was involved in the various misrepresentations alleged. The case at bar contains only one Defendant. There is no such uncertainty In this case.
4

Plaintiffs' Opposition To Motion To Dismiss Case No. 07-02050 SC

Case3:07-cv-02050-SC Document16 Filed06/08/07 Page8 of 18

1

B. WHAT PLAINTIFFS HAVE ACTUALLY PLED

2

In order to prevail on its Motion, Defendant must be able to demonstrate that the

3 Plaintiffs pled merely the bare elements of fraud, without providing the adequate

4 particulars of the misconduct. Upon examination of the Complaint, it is clear that

5 Defendant cannot prevail.

6

In addition to incorporating by reference, the previous 76 paragraphs of the

7 Complaint, the relevant portion of the Plaintiffs' Seventh Cause of Action reads as

8 follows:

9

10

77. Plaintiffs, on information and belief, allege that

11

Defendant DOLLAR TREE, by and through its officers,

12

human resource directors, regional managers, district

13

managers, area managers and others, for the last two and/or

14

four years has known that the Plaintiffs and members of their

15

Class did not meet the legal requirements of exempt

16

employees and knew that the Plaintiffs and members of their

17

Class could not be ordered to work more than eight (8) hours

18

per day or forty (40) hours per week without being paid

19

overtime. Specifically:

20

a. Defendant regularly observed and required

21

Plaintiffs and members of their Class to perform non-exempt

22

work, through periodic inspections and visits of store

23

locations by Area Managers, District Managers, and Regional

24

Managers.

25

b. Defendant knew that Plaintiffs and members of

26

their Class were required to perform the work necessary to

27

restock shelves and process customer purchases. Despite this

28

5
Plaintiffs' Opposition To Motion To Dismiss Case No. 07-02050 SC

Case3:07-cv-02050-SC Document16 Filed06/08/07 Page9 of 18

1

knowledge, Defendant refused to allocate sufficient labor

2

hours for non-exempt employees to complete these duties.

3

c. Defendant knew that Plaintiffs and members of

4

their Class regularly spent far less than fifty percent (50%) of

5

their work time performing management duties, since most

6

store management functions were mostly controlled at the

7

district, regional and corporate levels, and the actual

8

management duties performed at the store level-- including

9

the writing of weekly work schedules and occasional training

10

and coaching or directing of staff-- only required a few hours

11

per week to be adequately performed.

12

d. Defendant knew, or should have known, of the

13

requirements of California State and Federal laws pertaining

14

to the requirements of overtime wages and exempt status.

15

More specifically, Defendant had been previously sued in

16

California for misclassifying its managers as "exempt" from

17

overtime and, therefore, had specific notice of the legal

18

requirements necessary to justify classification of workers as

19

"exempt" .

20

78. Despite possessing this knowledge, the Defendant

21

suppressed facts and did not disclose them to Plaintiffs and all

22

other Class members. Defendant did this even though they

23

had a legal duty under the Labor Code, and IWC Wage Order

24

7-80 (revised) to disclose the knowledge to Plaintiffs and

25

members of their Class.

26

79. Through hiring interviews, meetings, inter-office

27

memos, employment forms, job descriptions, and other

28

methods, Defendant has continuously represented to Plaintiffs

6
Plaintiffs' Opposition To Motion To Dismiss Case No. 07-02050 SC

Case3:07-cv-02050-SC Document16 Filed06/08/07 Page10 of 18

1

and members of their Class that, as managers, they are

2

salaried or exempt employees who can be required to work

3

more than eight (8) hours per day and more than forty (40)

4

hours per week for a flat monthly salary, with no overtime

5

compensation.

6

80. When Defendant made these statements to Plaintiffs

7

and members of their Class, they knew the statements

8

(particularly the assertion that no overtime pay was required

9

to be paid to the class members) were false.

10

81. These statements were purported by Defendant to be

11

facts and were made for the purpose of inducing Plaintiffs

12

and members of their Class to work in excess of eight (8)

13

hours per day and forty (40) hours per week without any

14

expectation on their part that they were entitled to receive

15

compensation for overtime worked.

16

82. Plaintiffs, and each member of their Class, reasonably

17

believed and relied on Defendant's assertions that they were

18

exempt employees who could be required to work overtime

19

without compensation.

20

83. In reliance on the assertions and to the detriment and

21

prejudice of Plaintiffs and each member of Plaintiffs' Class,

22

Plaintiffs and members of their Class have worked more than

23

eight (8) hours per day and more than forty (40) hours per

24

week, in violation of IWC Wage Order 7-80 (revised) and the

25

Labor Code, without being paid overtime.

26

84. As a direct result of the knowingly false assertions and

27

the concealment of fact by the Defendant, Plaintiffs and

28

members of their Class have earned, but have not been paid,

7
Plaintiffs' Opposition To Motion To Dismiss Case No. 07-02050 SC

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1

overtime wages, plus interest, in an amount to be proven at

2

trial.

3

85. In addition to causing actual damages, the suppression

4

of true facts and assertion of false information was done with

5

malice, oppression and/or fraud on the part of the Defendant

6

for the purpose of depriving Plaintiffs and members of their

7

Class of their legal property rights to overtime pay and to gain

8

an unfair advantage over Defendant's competitors. Such acts

9

were done with the authorization, ratification, and/or advance

10

knowledge of the officers and/or directors of DOLLAR

11

TREE. Such acts, committed with malice, oppression, and/or

12

fraud, justify the awarding of punitive damages to the

13

Plaintiffs and each member of their Class in an amount

14

commensurate with the enormity of the wrongfulness of the

15

acts themselves, for the purpose of punishing the Defendant

16

and deterring it from conducting itself in a similar fashion at

17

any time in the future.

18

19

While Plaintiffs provided far more specific information than the following, a

20 summary of the particulars of the allegations reveals the "who, what, how, when and

21 where" of the fraud alleged.

22

The WHO: The corporation, Dollar Tree Stores, Inc.

23

The WHAT: The false designation and treatment of Store Managers as "exempt"

24 from overtime.

25

The HOW: By having a corporate policy and practice that treats all California

26 store managers as "exempt" from overtime.

27

The WHEN: For the entire employment of the class representatives, and the class

28 period.

8
Plaintiffs' Opposition To Motion To Dismiss Case No. 07-02050 SC

Case3:07-cv-02050-SC Document16 Filed06/08/07 Page12 of 18

1

The WHERE: Every single Dollar Tree Store in the State of California.

2

To WHAT END: Plaintiffs and the class relied upon the Defendant's

3 classification of them as "exempt" from overtime and Defendant was thus able to keep

4 the money that it was lawfully required to pay its employees.

5

In addition, it is worth noting that Rule 9(b) itself states that the intent element

6 may be alleged generally. Despite the permissiveness of general allegations of intent,

7 Plaintiffs' Complaint went further than was required when it expressly referred to a prior

8 California litigation involving the exact same misclassification of store managers as

9 "exempt" and the failure by the same Defendant to remedy that misclassification (which

10 obviously results in a higher level of intent concerning that misclassification).

11

What the Plaintiffs essentially plead is the existence of a corporate policy to

12 falsely designate hundreds of employees as managers in order to avoid paying them

13 overtime, so as to lower its overhead and increase corporate profits. The fraud arose

14 from the corporations' decision to designate Plaintiffs and members of their class as

15 "managers," and to then exempt those "managers" from the benefits they were entitled to

16 by the law of the State of California. The Defendant corporation's designation and

17 treatment of the class member store managers as "exempt" from overtime was not merely

18 a violation of the statute, but a fraudulent one. As pled in the Complaint, the Defendant

19 is not only presumed to know the law (as ignorance of the law is never an excuse), this

20 particular Defendant had been sued for this exact same conduct previously, and therefore,

21 had knowledge of the legal requirements of classifying a class of employees as "exempt"

22 from overtime. To continue treating its store managers as "exempt" in light of this

23 knowledge is fraudulent.

24

The fraud alleged In the Complaint continued each time the Plaintiffs and

25 members of their Class were issued a paycheck, along with an itemized wage statement,

26 which falsely designated the amount that the Plaintiffs earned by falsely failing to state

27 those hours worked which by law were to be compensated at a premium rate, and what

28 that premium rate should have been. As will be explained more fully below, the

9
Plaintiffs' Opposition To Motion To Dismiss Case No. 07-02050 SC

Case3:07-cv-02050-SC Document16 Filed06/08/07 Page13 of 18

1 representations, statements and assertions referred to in Paragraphs 79 through 85 are not

2 purely verbal or written representations, statements, and assertions. Rather, they are

3 merely symbols of the fraudulent conduct by Defendant that were designed to affirm, and

4 which did in fact affirm, the false designation of Plaintiffs and members of the Class as

5 managers who were not entitled to overtime compensation.

6

7

C. PLAINTIFFS HAVE SATISFIED THE HEIGHTENED

8

PLEADING REQUIREMENT BY PROVIDING SUFFICIENT

9

INFORMATION AS TO THE DETAILS OF THE DEFENDANT'S FRAUD

10

Defendant claims that Plaintiffs have failed to identify the persons who uttered or

11 published the misrepresentations that are at the root of the alleged fraud. Defendant also

12 claims that the Plaintiffs have not identified the precise time, place and specific content

13 of the false representations, and have failed to specify documents in which these

14 representations were made. Following an analysis of these claims, it is easy to conclude

15 that Defendant is wrong and its request for relief must be denied.

16

Underlying each of Defendant's claims as to the inadequacy of the Plaintiffs fraud

17 allegations can be found the false presumption that a cause of action for Fraud must be

18 based upon a particular and insular false statement of fact. It is true that Fraud (or Deceit

19 as it was formerly known) is generally understood to rest on false representations or

20 willful nondisclosures of a material fact. But as William Prosser has pointed out:

21

22

it is not necessarily so limited. The exhibition of a document,

23

turning back the odometer of an automobile offered for sale,

24

drawing a check without funds, or a wide variety of other

25

conduct calculated to convey a misleading impression under

26

the circumstances of the case, may be sufficient. Merely by

27

entering into some transactions at all, the defendant may

28

reasonably be taken to represent that some things are true-as

10
Plaintiffs' Opposition To Motion To Dismiss Case No. 07-02050 SC

Case3:07-cv-02050-SC Document16 Filed06/08/07 Page14 of 18

1

for example, that a bank which receives deposits is solvent, or

2

that a stock certificate sold is a valid one, and that he has a

3

permit to sell it. It is trite to say in such cases that "actions

4

may speak louder than words." (Prosser, Handbook on the

5

Law of Torts (4th Ed., 1971) § 106, p. 694-695; Prosser &

6

Keeton On Torts (5th Ed., 1984), § 106, p. 736).

7

8

When one alleges a fraud that is committed, not by a particular and insular

9 misrepresentation, but by conduct, it is the conduct itself that stands in the place of the

10 statements that were either made or should have been made. When pleading fraud by a

11 course of corporate conduct, Plaintiff is not required to detail what exact verbiage was

12 contained in particular statements pursuant to that course of conduct, or provide a list of

13 corporate representatives who followed that course of conduct. He need not do this

14 because to do so would be impossible, if not absurd. What the Plaintiff must do instead

15 is describe the conduct with sufficient detail. That is exactly what the Plaintiffs have

16 done in their Complaint.

17

With regard to the Plaintiffs' alleged failure to identify the persons who uttered or

18 published the fraud, Plaintiffs admit that no individual person was identified in the

19 Complaint. As noted in the previous paragraphs of this Opposition brief, the fraud

20 alleged by Plaintiffs is not of the kind that is susceptible to the detailing of a particular

21 spoken or written misrepresentation, by a particular person on a particular day. It is

22 evident, instead, in conduct. Moreover, this is not a case (primarily) where one

23 individual person knowingly and falsely assured another that something was true and

24 then obtained a benefit to that other person's detriment. This case, instead, involves the

25 wrongdoing of a corporate person. The law in effect in the Federal Courts has long

26 recognized corporations are persons (albeit fictitious), entitled to rights that any actual

27 human being is entitled to, including the protections of the fourteenth amendment and the

28 Bill of Rights, and to which, through its agents and employees, a will is imputed, and to

11
Plaintiffs' Opposition To Motion To Dismiss Case No. 07-02050 SC

Case3:07-cv-02050-SC Document16 Filed06/08/07 Page15 of 18

1 which malice can be ascribed.2 In our case, a corporate person (the Defendant) adopted

2 an illegal policy to treat rank and file workers as exempt managers to avoid paying them

3 overtime and then treated them in accordance with that policy, all the while giving no

4 occasion for the employees (including Plaintiffs and their Class) to believe they had

5 reason to expect anything more. (And all the while having reason to know the

6 designation falsely robbed its employees of their rightful wages.) Since this is all fully

7 explained in the Plaintiffs' Complaint, the Defendant's Motion should be denied.

8

With regard to Defendant's contention that Plaintiffs failed to account for the time,

9 place and specific content of each false representation, Plaintiff must also disagree.

10 Again, we are not dealing, in this case, so much with a single misrepresentation, or even a

11 series of them, as we are with a continuing and constant course of conduct which itself

12 was founded on a corporate policy that antedated the hiring of the Plaintiffs and the

13 members of their Class. Instead of particular misrepresentations, what are primarily at

14 issue are things analogous to them: fraudulent actions. And with regard to these actions

15 that are at the root of the alleged fraud, Plaintiffs have satisfied their burden under Rule

16 9(b). Plaintiffs have indeed designated the time when the perpetration of the fraudulent

17 conduct, and the scheme of which it is a manifestation, occurred. Plaintiffs have said that

18 for the entire Class period the policy of falsely designating the Plaintiffs and their Class

19 as exempt managers was in place, and that during this entire period Plaintiffs and their

20 Class received from the Defendant itemized wage statements that did not correctly state

21 the hours they worked or the rates of pay that were operative for each of those hours.

22 This policy and practice permeated the very atmosphere of the corporation and all Dollar

23

24 2 This paragraph summarizes a massive area of law that cannot be easily summarized with
reference to authorities. Any compendium of authorities would, however, include: Darmouth
25 College v. Woodward (1819) 17 U.S. 518,4 Wheat. 518, where the Supreme Court 26 acknowledged that Corporations were fictitious persons; Chicago, Milwaukee and St. Paul
Railway Company v. Minnesota (1890) 134 U.S. 418, 10 S.Ct. 462, where the Court held that
27 Corporations were entitled to due process rights pursuant to the Fifth and Fourteenth
Amendments; and the jurisprudence arising from the Sherman Act-a law that expressly
28 provided that Corporations would be treated as persons for purposes of imputing malice in the
commission of acts to restrain commerce.
12

Plaintiffs' Opposition To Motion To Dismiss Case No. 07-02050 SC

Case3:07-cv-02050-SC Document16 Filed06/08/07 Page16 of 18

1 Tree stores where Plaintiffs and their Class were employed. It was always present, ever

2 in effect. In other words, the fraud was a constant, fundamental underpinning to the

3 relationship between Defendant and its so-called "store managers."

4

Plaintiffs have also adequately described the place where the fraudulent conduct

5 occurred. Plaintiffs have made it clear that the policy out of which the conduct at issue

6 sprang was a company policy and practice put into effect throughout California. The

7 Plaintiffs have alleged that the Defendant owns and operates approximately two hundred

8 stores in California. If the Plaintiffs stated that the same fraudulent scheme was in effect

9 at each of these locations, it should not later be found to be necessary to describe with

10 particularity each of these locations. If each fraud was different, and a different fraud

11 occurred at each location where Plaintiffs and members of their Class were employed, the

12 precise location where each fraud occurred would undoubtedly be called for. But that is

13 not the case here. The allegation in the Complaint that the fraud was perpetrated at each

14 of Defendant's two hundred stores is sufficient to satisfy the requirements of Rule 9(b).

15

Finally, Defendant is completely wrong in asserting that Plaintiffs' failure to

16 precisely identify and describe documents more generally referred to in Plaintiffs'

17 complaint is grounds for dismissing Plaintiffs' Fraud Cause of Action. It is true that

18 Plaintiffs did refer to documents in Paragraph 79 of their Complaint, but the reference

19 was not to documents that form the basis of the fraud. Rather the documents referred to

20 in Paragraph 79 were documents that merely evidenced the existence of the fraudulent

21 scheme, and the course of conduct entered into by Defendant, to treat the Plaintiffs and

22 their Class as workers who were not entitled to overtime pay. The origin of the scheme

23 itself predated any of these written statements, and was independent of them, and was

24 rooted not in the statements written but in the systematic treatment by Defendant of the

25 Plaintiffs and their Class. In its designation of the Plaintiffs and their Class as "Store

26 Managers," and their automatic exemption of these "Store Managers" from overtime pay,

27 and their regular and repeated refraining from paying these "Store Managers" overtime

28

13
Plaintiffs' Opposition To Motion To Dismiss Case No. 07-02050 SC

Case3:07-cv-02050-SC Document16 Filed06/08/07 Page17 of 18

1 when it was earned, Defendant's actions, in the words of Dean Prosser, spoke louder than

2 words.

3

In reflecting on the meaning of Rule 9 (b), Congress could hardly have intended

4 that a Plaintiff must identify with particularity documents that are merely evidence of a

5 pre-existing and nearly self-perpetuating fraud rooted in a broad course of conduct. If the

6 Plaintiffs here were required to identify such documents such a requirement would lead

7 them far astray from the essential facts of the case, decimate the practical meaning of the

8 notice pleading standard that is the hallmark of the Federal Rules, and burden the

9 Plaintiffs with the identification of so many documents and the statements made therein

10 as to transform the Complaint into an exercise in discovery, rather than of Pleading.

11 Indeed, nothing would be gained from a pleading or notice perspective if the Plaintiffs

12 were able to specifically identify each and every paycheck and paystub in which they

13 were treated as "exempt" from overtime.

14

Again, Rule 9(b) merely requires a summary of the details of the fraud, not minute

15 recreation of every step of the fraud and descriptions of all evidence, including all

16 documents, which confirm its existence. The Defendant's employment classification

17 practices with regard to Plaintiffs and their Class is the fraud in this case, not the

18 documents referred to in the Complaint. This policy is evident not so much in documents

19 as in the regular treatment by the Defendant of the Plaintiffs and their Class as exempt

20 "Store Managers" and the withholding from them of payment of all overtime wages the

21 Plaintiffs and members of their Class earned as a result of working in excess of eight

22 hours per day and more than forty hours per week.

23

III. CONCLUSION

24

Plaintiffs have more than satisfied the requirements of the Federal Rules, and

25 applicable common law authority. Defendant's Motion should be denied. As the Courts

26 have held time and time again, the purpose behind the heightened pleading requirements

27 is to give defendants enough information so that they are able to effectively respond to

28 the Complaint. The very detailed Complaint in this matter certainly does so.

14
Plaintiffs' Opposition To Motion To Dismiss Case No. 07-02050 SC

Case3:07-cv-02050-SC Document16 Filed06/08/07 Page18 of 18

1

In the event, however, that the Court is not satisfied that the Plaintiffs have pled

2 with sufficient particularity, Plaintiffs respectfully request leave to amend the Complaint

3 and direction by the Court of what more is required of them.

4

5 Dated: June 7, 2007

EDGAR LAW FIRM

6

7

By:

8

Donald S. El gar, Esq.

9

Jeremy R. Fietz, Esq.

Rex Grady, Esq.

10

Attorneys for Plaintiffs

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

15
Plaintiffs' Opposition To Motion To Dismiss Case No. 07-02050 SC

 
 Case3:07-cv-02050-SC Document19 Filed06/29/07 Page1 of 4

United States District Court
For the Northern District of California

1

2

3

4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6

MIGUEL A. CRUZ, and JOHN D. HANSEN,) Case No. 07-2050 SC

7 individually and on behalf of all )

others similarly situated,

)

8

) ORDER GRANTING

Plaintiffs,

) DEFENDANT'S MOTION TO

9

) DISMISS PLAINTIFFS'

v.

) FRAUD CLAIM

10

)

DOLLAR TREE STORES, INC.,

)

11

)

Defendant.

)

12

)

13 I. INTRODUCTION

14

On April 11, 2007, Plaintiffs Miguel Cruz, John Hansen, and

15 all others similarly situated ("Plaintiffs") filed a complaint

16 against Defendant Dollar Tree Stores, Inc. ("Defendant" or "Dollar

17 Tree"). See Docket No. 1. Presently before the Court is

18 Defendant's motion to dismiss the Seventh Cause of Action, a claim

19 for fraud and deceit. See Docket No. 5; Compl. ¶¶ 75-85.

20 Plaintiffs opposed the motion and Defendant filed a reply. See

21 Docket Nos. 16, 18.

22

For the reasons discussed herein, the Court GRANTS

23 Defendant's motion to dismiss Plaintiffs' Seventh Cause of Action

24 for fraud and deceit.

25

26 II. BACKGROUND

27

According to the Complaint, Plaintiffs are former Store

28 Managers at Dollar Tree who allege that they were improperly

Case3:07-cv-02050-SC Document19 Filed06/29/07 Page2 of 4

United States District Court
For the Northern District of California

1 classified as exempt and therefore denied wages for overtime.

2 Compl., ¶¶ 2-4. The Seventh Cause of Action alleges that

3 Defendant committed fraud and deceit because the company and its

4 agents knew that Plaintiffs should be classified as "non-exempt"

5 employees, but classified them as "exempt" in order to avoid

6 paying overtime. Id. at ¶¶ 75-85. Plaintiffs allege that

7 Defendant knew its statements were false and made them to induce

8 Plaintiffs to work extra hours for free. Id.

9

10 III. LEGAL STANDARD

11

Under Federal Rule of Civil Procedure 12(b)(6), a motion to

12 dismiss can be granted if the plaintiff fails "to state a claim

13 upon which relief can be granted." Fed. R. Civ. P. 12(b)(6).

14 When evaluating a motion to dismiss, the court accepts the facts

15 as stated by the nonmoving party and draws all inferences in its

16 favor. See Everest & Jennings, Inc. v. Am. Motorists Ins. Co., 23

17 F.3d 226, 228 (9th Cir. 1994). Furthermore, courts must assume

18 that all general allegations "embrace whatever specific facts

19 might be necessary to support them." Peloza v. Capistrano Unified

20 Sch. Dist., 37 F.3d 517, 521 (9th Cir. 1994). At the pleading

21 stage, the plaintiff "need only show that the facts alleged, if

22 proved, would confer standing upon him." Warren v. Fox Family

23 Worldwide, Inc., 328 F.3d 1136, 1140 (9th Cir. 2003). If a

24 complaint is dismissed for failure to state a claim, "leave to

25 amend should be granted unless the court determines that the

26 allegation of other facts consistent with the challenged pleading

27 could not possibly cure the deficiency." Schreiber Distrib. Co.

28

2

Case3:07-cv-02050-SC Document19 Filed06/29/07 Page3 of 4

United States District Court
For the Northern District of California

1 v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986).

2

3 IV. DISCUSSION

4

"To survive a motion to dismiss for failure to state a claim

5 under Rule 12(b)(6), a complaint generally must satisfy only the

6 minimal notice pleading requirements of [Federal] Rule [of Civil

7 Procedure] 8(a)(2)." Porter v. Jones, 319 F.3d 483, 494 (9th Cir.

8 2003). However, where a complaint includes allegations of fraud,

9 Federal Rule of Civil Procedure 9(b) requires more specificity

10 including an account of the "time, place, and specific content of

11 the false representations as well as the identities of the parties

12 to the misrepresentations." Edwards v. Marin Park, Inc., 356 F.3d

13 1058, 1066 (9th Cir. 2004) (citation omitted). "To comply with

14 Rule 9(b), allegations of fraud must be specific enough to give

15 defendants notice of the particular misconduct which is alleged to

16 constitute the fraud charged so that they can defend against the

17 charge and not just deny that they have done anything wrong."

18 Bly-Magee v. California, 236 F.3d 1014, 1019 (9th Cir. 2001)

19 (citation and quotation omitted).

20

In their Complaint, Plaintiffs' Seventh Cause of Action is

21 for fraud and deceit. See Compl., ¶¶ 75-85. This fraud claim

22 must meet the heightened pleading requirements of Rule 9(b). See

23 Edwards v. Marin Park, Inc., 356 F.3d at 1066. This requires

24 Plaintiffs to give a specific account of the fraud so that Dollar

25 Tree can defend against the charge with more than a blanket

26 denial. Under the Rule 9(b) standard, Plaintiffs' Complaint fails

27 to give sufficient detail with respect to the time, place,

28

3

Case3:07-cv-02050-SC Document19 Filed06/29/07 Page4 of 4

United States District Court
For the Northern District of California

1 content, and identities of the parties engaged in the fraud.

2 Plaintiffs' argue that the fraud was perpetrated during the entire

3 class period, at every Dollar Tree store in California, through a

4 corporate policy and practice, and by the entire corporation. See

5 Compl.; Opp'n, 8-9. These allegations are too vague to allow

6 Defendant to respond constructively. To satisfy Rule 9(b),

7 Plaintiffs should identify specific oral statements or written

8 documents indicative of fraud, including specific information on

9 the timing of the incidents and employees involved.

10

11 V. CONCLUSION

12

For the reasons discussed herein, Defendant's Motion to

13 Dismiss is GRANTED and Plaintiffs' Seventh Cause of Action for

14 fraud and deceit is DISMISSED without prejudice. Plaintiffs have

15 30 days from the date of this Order to file an amended complaint.

16

17

IT IS SO ORDERED.

18

19

Dated: June 29, 2007

20

UNITED STATES DISTRICT JUDGE

21

22

23

24

25

26

27

28

4

 
 Case3:07-cv-02050-SC Document23 Filed07/27/07 Page1 of 32

1 Donald S. Edgar, Esq. (SBN 139324) 2 Jeremy R. Fietz, Esq. (SBN 200396)
Rex Grady, Esq. (SBN 232236) 3 EDGAR LA W FIRM
408 College Avenue 4 Santa Rosa, California, 95401 5 Tel: (707) 545-3200 6 Fax: (707) 578-3040
7 Attorneys for Plaintiffs, MIGUEL A. CRUZ, and JOHN D. HANSEN,
8 individually and on behalf of all employees 9 similarly situated

10 UNITED STATE DISTRICT COURT
11 NORTHERN DISTRICT OF CALIFORNIA
12

13

14 MIGUEL A. CRUZ, and JOHN D.
15 HANSEN, individually and on behalf of 16 all others similarly situated,

17

Plaintiffs,

18

19

v.

20 21 DOLLAR TREE STORES, INC.,

22

Defendant.

CASE NO. 07-2050 SC FIRST AMENDED COMPLAINT FOR DAMAGES, INJUNCTIVE RELIEF AND RESTITUTION CLASS ACTION DEMAND FOR JURY TRIAL

23

24

25

26

27

28

- 1-
FIRST AMENDED CLASS ACTION COMPLAINT

CASE NO. 07-2050 SC

Case3:07-cv-02050-SC Document23 Filed07/27/07 Page2 of 32

1

CLASS ACTION ALLEGATIONS

2

1. Pursuant to Rule 23 of the Federal Rules of Civil Procedure, Public Law

3 109-2 (Class Action Fairness Act), and other relevant statutory and common laws,

4 Plaintiffs, MIGUEL A. CRUZ and JOHN D. HANSEN, individually and on behalf of all

5 employees similarly situated, seek class-wide relief for patterns and practices of unlawful

6 conduct by Defendant, DOLLAR TREE STORES, INC ..

7

2. The proposed Class that the Plaintiffs seek to represent is composed of

8 current and former employees of Defendant DOLLAR TREE's stores within the State of

9 California, who have held the position of a salaried "store manager" at any time since

10 four years prior to the filing of the initial complaint in this matter up to the date of trial.

11

3. The persons in the Class are so numerous that the joinder of all such

12 persons is impracticable, and the disposition of their claims as a Class will benefit the

13 parties and the court.

14

4. There is a well-defined commonality of interest in the questions of law and

15 of fact involving and affecting the class members to be represented in that all of these

16 employees have been harmed by the Defendant's failure to pay overtime wages by virtue

17 of Defendant illegally designating these employees as exempt in violation of the

18 California Labor Code and applicable Industrial Welfare Commission ("IWC") wage

19 orders and the Fair Labor Standards Act.

20

5. The claims of Plaintiffs alleged in this Complaint are typical of those

21 claims that could be alleged by any member of the Class, and the relief sought is typical

22 of the relief that would be sought by each member of the Class in separate actions. Each

23 member of the Class enjoys the legal presumption of non-exempt status. Each member

24 has been harmed in the same manner as all other Class members by being denied

25 overtime wages due to DOLLAR TREE's corporate-wide policies and practices.

26

6. Plaintiffs will fairly and adequately represent and protect the interests of all

27 members of the Class. There are no known conflicts of interest between the named Class

28

-2-
FIRST AMENDED CLASS ACTION COMPLAINT

CASE NO. 07-2050 SC

Case3:07-cv-02050-SC Document23 Filed07/27/07 Page3 of 32

1 representatives and Class members. If any conflicts do arise, other former and current

2 Class members are available to serve as Class representatives.

3

7. The prosecution of separate actions by individual members of the Plaintiff

4 Class would create a risk of inconsistent and/or varying adjudications with respect to the

5 individual members of the Class, establishing incompatible standards of conduct for the

6 Defendant and resulting in the impairment of Class members' rights and the disposition

7 of their interests through actions to which they were not parties.

8

8. Common issues predominate with respect to the employees' claims in that

9 all claims arise out of: (a) Defendant's unlawful designation of Class members as exempt

10 employees; (b) the failure of Defendant to pay Class members overtime compensation for

11 hours worked in excess of eight (8) hours per day and/or forty (40) hours per week; (c)

12 Defendant's failure to issue accurate itemized wage statements; and (d) the Defendant's

13 failure to provide appropriate meal and rest breaks.

14

9. Proceeding in reliance on the Class form of action is superior to numerous

15 individual actions as a means of adjudicating those claims. Since the damages suffered

16 by individual Class members, while not inconsequential, may be relatively small, the

17 expense and burden of individual litigation by each member makes, or may make, it

18 impractical for Class members to seek redress individually for the wrongful conduct

19 alleged in this Complaint. Should separate actions be brought or be required to be

20 brought by each individual Class member, the resulting multiplicity of lawsuits would

21 cause undue hardship and expense for both the Court and the litigants. The prosecution

22 of separate actions would also create a risk of inconsistent rulings, which might be

23 dispositive of the interests of other Class members who are not parties to the

24 adjudications and/or may substantially impede their ability to adequately protect their

25 interests. Moreover, the Representative Plaintiffs are informed, believe and allege that

26 Defendant, in refusing to pay overtime, or grant meal and rest breaks, or issue accurate

27 itemized wage statements, have acted and refused to act on grounds generally applicable

28

-3-
FIRST AMENDED CLASS ACTION COMPLAINT

CASE NO. 07-2050 SC

Case3:07-cv-02050-SC Document23 Filed07/27/07 Page4 of 32

1 to all claims, thereby rendering injunctive and monetary relief for all members of the

2 Class an appropriate remedy.

3

10. Plaintiffs have retained adequate counsel. The counsel retained by

4 Plaintiffs are experienced and competent in both class action and employment litigation.

5

11. This Court has jurisdiction because the parties in the action are citizens of

6 different States (Constitution of the United States, Article III, Sec. 2), and because the

7 action is a Class Action wherein the requisite diversity of citizenship exists among the

8 parties and the matter in controversy exceeds the sum or value of $ 5,000,000, exclusive

9 of interest and costs (Public Law 109-2).

10

11

GENERAL ALLEGATIONS

12

12. At all times mentioned in this Complaint, Plaintiff MIGUEL A. CRUZ

13 (hereinafter identified as "Plaintiff CRUZ," or grouped with Plaintiff HANSEN as

14 "Plaintiffs") was an individual residing in the California County of Sonoma.

15

13. Plaintiff CRUZ worked at the DOLLAR TREE store in Healdsburg, in

16 Sonoma County, from approximately June 22, 2006 to January 12, 2007. While

17 employed at the Healdsburg store, Plaintiff CRUZ was classified by Defendant DOLLAR

18 TREE as a "Store Manager."

19

14. At all times mentioned in this Complaint, Plaintiff JOHN D. HANSEN

20 (hereinafter identified as "Plaintiff HANSEN" or grouped with Plaintiff CRUZ as

21 "Plaintiffs") was an individual residing in the California County of Sonoma.

22

15. Plaintiff HANSEN worked at the DOLLAR TREE store in Rohnert Park, in

23 Sonoma County from August of 2006 until April of 2007. While employed at the

24 Rohnert Park Store, Plaintiff HANSEN was classified by Defendant DOLLAR TREE as

25 a "Store Manager."

26

16. Plaintiffs bring this action on behalf of themselves, other employees of

27 Defendant DOLLAR TREE, and the general public, pursuant to California Business and

28

- 4-
FIRST AMENDED CLASS ACTION COMPLAINT

CASE NO. 07-2050 SC

Case3:07-cv-02050-SC Document23 Filed07/27/07 Page5 of 32

1 Professions Code sections 17000 et seq. and 17200 et seq., in addition to Federal Rule of

2 Civil Procedure 23 and other relevant authorities.

3

17. At all times mentioned in this Complaint, Defendant DOLLAR TREE

4 STORES, INC. ("DOLLAR TREE" and/or "Defendant") was and is a corporation

5 organized and existing under the laws of the State of Virginia and licensed to do business

6 in California, and was and is doing business at approximately two hundred (200)

7 locations in the State of California, including numerous locations in the County of

8 Sonoma.

9

18. At all times mentioned in this Complaint, Defendant DOLLAR TREE was

10 and is engaged in the business of maintaining retail stores for the purpose of selling to the

11 general public discounted household products and miscellaneous merchandise.

12 Defendant operates approximately two hundred (200) such stores throughout the State of

13 California.

14

19. Each DOLLAR TREE store is located in a "district." Each district

15 comprises a number of stores. The stores where Plaintiffs worked lay in a district that

16 included approximately a dozen stores. Each district was and is overseen by a "district

17 manager." The district manager, in tum, is overseen by a "regional manager." Each

18 regional manager is answerable to individuals employed at DOLLAR TREE'S national

19 headquarters.

20

20. Each store manager was paid a monthly salary. As "managers," each store

21 manager was, according to Defendant DOLLAR TREE, exempt from state and federal

22 laws mandating overtime wages, accurate itemized wage statements documenting

23 overtime hours earned, and meal and rest breaks. Store managers, however, were hardly

24 "managers," in that virtually all of their time was dedicated to performing regular hourly

25 employee tasks such as stocking shelves and cashiering. The amount of time spent by

26 each store manager supervising other employees, handling payroll, reordering product

27 and performing other tasks generally associated with "managing" was extremely small.

28 The time dedicated to "managing" by each store manager did not equal or exceed fifty

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1 percent (50%) of all time spent each week by each store manager in the employ of

2 DOLLAR TREE. By designating Plaintiffs and members of their Class as "store

3 managers," yet employing them to perform tasks identical to those performed by rank and

4 file wage earning employees, DOLLAR TREE was able to justify employing Plaintiffs

5 and members of their Class for many hours in excess of forty (40) each week without also

6 compensating them at the pay rate mandated by state and federal laws, and without

7 providing them with meal and rest breaks in accordance with state law.

8

21. Usually, there were only one or two other employees in a given store for a

9 store manager to "supervise." Rarely would an hourly employee have to be talked to by a

10 store manager about work-related problems. Most conversations between a store

11 manager (while acting as "manager") and regular hourly "employees" that did take place

12 had to do with overages or shortages discovered by the store manager at a particular cash

13 register. Store managers also handled most of the actual hiring of hourly employees at

14 the store they were charged with "managing." The hiring process generally consisted of

15 quickly reviewing a resume and making a phone call to tell someone they were hired and

16 when they should report for duty. When the newly hired hourly employee first appeared

17 at the store to work, the store manager would provide him or her with "training."

18 Training consisted of the store manager telling the newly hired employee to begin

19 stocking shelves, how to scan a bar code on a product and how to press the appropriate

20 buttons on the cash register in order to register the sale and make change. Because of the

21 simplicity of the job requirements, training for any given new hourly employee took only

22 several minutes.

23

22. "Store managers" also handled the scheduling of employees. Scheduling of

24 employees, however, took no more than a half hour per week. Payroll was dictated by

25 the district manager, who regularly informed each store manager of that store manager's

26 store goals regarding overhead. The district manager would then admonish each store

27 manager to keep overhead low so as to attain the stated goal. District managers actually

28 informed each store manager how many hours to cut each week in order to reach the

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1 gIven goal. If the store manager failed to reach the goal, the store manager was

2 upbraided, chastised and subjected to discipline, including the threat of and actual

3 termination.

4

23. While managers were technically required to oversee the ordering of store

5 product, ordering was virtually automatic. The maximum product level with respect to

6 each product sold at a given DOLLAR TREE store was programmed into a computer

7 tracking system by persons at the regional and district levels of the DOLLAR TREE

8 hierarchy. This tracking system was linked to the scanners at a given store's cashier

9 stations. When a product item was scanned upon purchase at one of these cashier

10 stations, the total number of items in stock at that store was reduced by one. In this way,

11 it was always possible to know how many items of product were present in the store, and

12 how much less this amount was than the maximum amount of product set for that item.

13 Several times per week store managers would push a button or click the mouse connected

14 to the computer tracking system to request that given products below the maximum

15 stocking levels set for those products be replenished. The manager would not need to

16 calculate the number of units necessary to reach the maximum. The tracking system

17 would determine this. The request would be electronically sent to a supply depot at

18 another location, and the product, in the precise amount determined by the computer

19 tracking system, would be shipped to the store of the manager who made the request.

20

24. Each store manager remained (and remains) tightly constrained by the

21 instructions and oversight of their respective district's manager. District managers

22 regularly admonished store managers to cut payroll hours as a way of keeping overhead

23 low and maximizing net store profits. District managers did this in response to corporate

24 policy, with the knowledge that if payroll hours were cut, payment for overtime hours

25 would be avoided, and any slack in staffing would be picked up by the store manager,

26 who worked on salary and never accrued overtime. Each week, the district manager

27 would instruct store managers regarding how many hours were available to be staffed and

28 when and in what amount cuts in payroll would be necessary. District managers would

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Case3:07-cv-02050-SC Document23 Filed07/27/07 Page8 of 32

1 also advise store managers when to order new product, and when to hire new employees

2 (though the actual hiring was done by store managers). Finally, district managers,

3 pursuant to corporate policy, instructed store managers never to be in their respective

4 stores alone. Corporate policy required that store managers always be present with at

5 least one other employee. In other words, each store manager's "managerial" character

6 was so debased (both objectively and in the view of DOLLAR TREE) that they were not 7 even trusted to be in the store by themselves.

8

9

FIRST CAUSE OF ACTION

10

FAILURE TO PAY OVERTIME WAGES

11

(California Labor Code Sections 203, 204, 215, 216, 226,

12

226.6, 510(a), 558, 1194, 1198 and/or 1199; IWC Wage Order 9 [revised])

13

25. Plaintiffs, individually and on behalf of all employees similarly situated,

14 restate, reallege, and incorporate by reference paragraphs 1 through 24 of this Complaint

15 as though fully set forth in the pleading of this First Cause of Action.

16

26. Pursuant to California Labor Code sections 203, 204, 215, 216, 226, 226.6,

17 510(a), 558, 1194, 1198, 1199, and certain Industrial Welfare Commission Wage Orders,

18 it is unlawful in California for an employer to employ a person for longer than eight (8)

19 hours in a single day, or more than forty (40) hours in a single week, without paying a

20 person more than their regularly hourly rate of compensation.

21

27. At all times mentioned in this Complaint, California Labor Code § 510

22 provided that "any work in excess of eight (8) hours in one workday and any work in

23 excess of forty (40) hours in anyone workweek and the first eight (8) hours worked on 24 the seventh (ih) day of work in anyone workweek shall be compensated at the rate of no

25 less than one and one-half times the regular rate of pay for an employee." At all times

26 mentioned in this Complaint, IWC Wage Order No. 7-80 (revised) provided for payment

27 of overtime wages equal to one and one-half times an employee's regular rate of pay for

28 all hours worked in excess of eight (8) hours per day and/or forty (40) hours in a single

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CASE NO. 07-2050 SC

Case3:07-cv-02050-SC Document23 Filed07/27/07 Page9 of 32

1 work week, and/or for payment of overtime wages equal to double the employee's

2 regular rate of pay for all hours worked in excess of twelve (12) hours in any workday

3 and/or for all hours worked in excess of eight (8) hours on the seventh (7th) day of work

4 in anyone workweek.

5

28. Defendant has intentionally and improperly designated certain employees,

6 including Plaintiffs and each member of their Class, as exempt store "managers" as a way

7 of avoiding the payment of overtime wages and other benefits in violation of California

8 Labor Code § 510, IWC Wage Order No. 7-80 (revised) and the guidelines set forth by

9 the California Division of Labor Standards and Enforcement (hereinafter "D.L.S.E.").

10

29. The job duties of Plaintiffs and each member of their Class do not fit the

11 definition of either exempt executive or administrative employees as set forth in

12 California law and D.L.S.E. interpretations and opinion letters because:

13

a. Less than 50% of their work hours have been spent on exempt

14 managerial or administrative duties;

15

b. More than 50% of their work hours have been spent performing non-

16 exempt duties, including, but not limited to stocking shelves, providing customer service

17 and cashiering.

18

c. Plaintiffs and each member of their Class have not had (and do not

19 have) discretion or independent judgment as defined by the D.L.S.E. because they must

20 follow exacting and comprehensive company-wide policies that dictate virtually every

21 aspect of "managerial" operations, including, but not limited to merchandise display;

22 selection, purchasing and pricing of merchandise to be sold; employee hiring and

23 scheduling; procedures for receiving, stocking, processing and assembling merchandise;

24 and store layout and design.

25

d. Plaintiffs and each member of their Class cannot set wages of hourly

26 employees, and they cannot set policies or procedures that bind the corporation.

27

e. Plaintiffs and each member of their Class have worked under the

28 direct and close supervision of Area Managers, District Managers, and Regional

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Case3:07-cv-02050-SC Document23 Filed07/27/07 Page10 of 32

1 Managers, each of whom prevent them from making independent decisions that affect the

2 store or the company as a whole.

3

30. Since commencing their employment with DOLLAR TREE, Plaintiffs and

4 each member of their Class have been required to regularly work in excess of eight (8)

5 hours per day and forty (40) hours per week. Furthermore, Plaintiffs and each member of

6 their Class have been regularly required to work six days per week.

7

31. Under Labor Code § 510 and the provisions of IWC Order 7-80 (revised),

8 Plaintiffs and each member of their Class should have received overtime wages in a sum

9 according to the proof for hours worked during the four (4) years prior to the filing of this

10 lawsuit. Defendant owes Plaintiffs and each Class member overtime wages, but has

11 failed and refused, and continues to fail and refuse, to pay Plaintiffs and each Class

12 member the amount owed.

13

32. Plaintiffs, individually and on behalf of those similarly situated, request

14 recovery of overtime compensation in an amount to be proven at trial, in addition to

15 interest, attorney fees, and costs pursuant to California Labor Code §§§ 218.5, 218.6 and

16 1194 (a), and California Code o/Civil Procedure § 1021.5, as well as the assessment of

17 any statutory penalties against the Defendant as authorized and in accordance with

18 relevant sections of the Labor Code.

19

20

SECOND CAUSE OF ACTION

21

FAILURE TO PAY ALL UNPAID WAGES AT TIME OF TERMINATION

22

(California Labor Code sections 201 (a) and 202 (a))

23

33. Plaintiffs, individually and on behalf of all employees similarly situated,

24 restate, reallege, and incorporate by reference paragraphs 1 through 32 of this Complaint,

25 as though fully set forth in the pleading of this Second Cause of Action.

26

34. California Labor Code § 201 (a) provides, in part, "if an employer

27 discharges an employee, the wages earned and unpaid at the time of discharge are due

28 and payable immediately."

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1

35. California Labor Code § 202 (a) provides, in part, "if any employee not

2 having a written contract for a definite period quits his or her employment, his or her

3 wages shall become due and payable not later than 72 hours thereafter... ," subject to

4 certain conditions, none of which obviate the duty of the employer to tender the

5 employee all money earned, yet unpaid, to the employee.

6

36. At all times mentioned in this Complaint, Defendant willfully failed to pay

7 wages (including overtime wages) earned by Plaintiffs and many (if not all) members of

8 their Class upon the termination of their status as employees of Defendant.

9

37. California Labor Code § 203 provides, in part, "if an employer willfully

10 fails to pay, without abatement or reduction, in accordance with Sections 201, 201.5, 202

11 and 205.5, any wages of an employee who is discharged or who quits, the wages of the

12 employee shall continue as a penalty from the due date thereof at the same rate until paid

13 or until an action therefore is commenced; but the wages shall not continue for more than

14 30 days. California Labor Code § 203 permits an employee to bring an action to recover

15 "these penalties at any time before the expiration of the statute of limitations on an action

16 for the wages from which the penalties arise."

17

38. Because Defendant willfully failed to pay all wages due Plaintiffs and

18 members of Plaintiffs' Class whose employment with Defendant was terminated,

19 Plaintiffs and Class members are entitled to recover all wages that should have been paid

20 to them, but which were not, at the time of termination, in addition to all penalties

21 authorized in Labor Code § 203.

22

23

THIRD CAUSE OF ACTION

24

FAILURE TO PROVIDE ACCURATE ITEMIZED WAGE STATEMENTS

25

(California Labor Code § 226 (a»

26

39. Plaintiffs, individually and on behalf of employees similarly situated,

27 restate, reallege, and incorporate by reference paragraphs 1 through 38 of this Complaint,

28 as though fully set forth in the pleading of this Third Cause of Action.

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Case3:07-cv-02050-SC Document23 Filed07/27/07 Page12 of 32

1

40. California Labor Code § 226(a) provides that, at the time of each payment

2 of wages, an employer shall provide each employee with an accurate wage statement

3 itemizing, among other things, the total hours worked by the employee during the pay

4 period, all applicable hourly rates in effect during the pay period, and the corresponding

5 number of hours worked at each hourly rate by the employee.

6

41. At all times mentioned in this Complaint, Defendant paid no overtime

7 wages to Plaintiffs and members of their Class, even though Plaintiffs and members of

8 their Class earned these wages. The itemized wage statements issued to Plaintiffs and

9 members of their Class did not accurately reflect all applicable hourly rates that should

10 have been in effect during the respective pay periods. Nor did these itemized wage

11 statements list the corresponding number of hours worked by Plaintiffs and members of

12 their Class at each applicable hourly rate. Instead, the itemized wage statements issued to

13 Plaintiffs and members of their Class reflected the reputed salary, without any indication

14 of the rate of pay applicable with respect to those hours worked in excess of eight (8)

15 hour per day and/or forty (40) per week.

16

42. In failing to receive accurate itemized wage statements from Defendant,

17 Plaintiffs and members of their Class suffered injury.

18

43. California Labor Code §226(e) provides, In part, that an employee

19 suffering injury as a result of a knowing and intentional failure by an employer to comply

20 with California Labor Code §226(a) is entitled to recover the greater of his actual

21 damages or a penalty of $50 for the initial pay period in which a violation occurs and

22 $100 for each violation in a subsequent pay period (up to a maximum of $4,000), in

23 addition to attorney fees and costs.

24

44. Defendant knowingly and intentionally failed to provide timely and

25 accurate itemized wage statements to Plaintiffs and each member of their Class in

26 accordance with California Labor Code § 226. The statements provided to Plaintiffs and

27 members of his Class did not (and do not) accurately reflect the actual gross wages they

28 earned or the total number of hours they worked.

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CASE NO. 07-2050 SC

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1

45. Because Defendant breached its duty pursuant to Labor Code § 226(a),

2 Plaintiffs and members of their Class are entitled to the damages and penalties provided

3 for under Labor Code § 226(e) and other relevant sections of the Labor Code.

4

5

FOURTH CAUSE OF ACTION

6

MEAL BREAK VIOLATIONS

7

(California Labor Code Sections 226.7 and 512 and IWC Wage Order 7-2001)

8

46. Plaintiffs, individually and on behalf of employees similarly situated,

9 restate, reallege, and incorporate by reference paragraphs 1 through 45 of this Complaint,

10 as though fully set forth in the pleading of this Fourth Cause of Action.

11

47. California Labor Code § 512 (a) prohibits any employer from requiring any

12 employee to work for a "period of more than five hours per day without providing the

13 employee with a meal period of not less than 30 minutes, except that if the total work

14 period per day of the employee is no more than six hours, the meal period may be waived

15 by mutual consent of both the employer and employee." This law further prohibits the

16 employer from employing an employee "for a work period of more than 10 hours per day

17 without providing the employee with a second meal period of not less than 30 minutes,

18 except that if the total hours worked is no more than 12 hours, the second meal period

19 may be waived by mutual consent of the employer and the employee only if the first meal

20 period was not waived."

21

47. California Labor Code §226.7 prohibits any employer from requiring any

22 employee to work during any meal period mandated by an applicable IWC Wage Order,

23 and mandates that an employer who fails to provide an employee with a required meal

24 period shall pay that employee one additional hour of pay at the employee's regular rate

25 of compensation for each work day in which the meal period is not provided.

26

48. Defendant was and is subject to the provisions of Labor Code Sections

27 226.7 and 512 and an applicable IWC Wage Order. IWC Wage Order 7-2001, Subd.
28 II(A) provides that: "No employer shall employ any person for a work period of more
than five (5) hours without a meal period of not less than 30 minutes... " Such meal
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CASE NO. 07-2050 SC

Case3:07-cv-02050-SC Document23 Filed07/27/07 Page14 of 32

1 breaks are unpaid only if: (1) such breaks are at least 30 minutes long; (2) the employee

2 is relieved of all duties; and (3) the employee is free to leave the work premises in order

3 to break.

4

49. Further, Subd. II(B) of IWC Wage Order 7-2001 reiterates the remedial

5 language of Labor Code § 226.7 by stating that if "an employer fails to provide an

6 employee a meal period in accordance with the applicable provisions of this order, the

7 employer shall pay the employee one (1) hour of pay at the employee's regular rate of

8 compensation for each workday that the meal period is not provided." (Emphasis added).

9

50. Plaintiffs and members of their Class are informed, believe and allege that

10 for the four years preceding the filing of this action, Defendant often failed to provide

11 meal breaks to Plaintiffs, consistent with the provisions recounted in the preceding four

12 paragraphs. Plaintiffs routinely worked in excess of ten hours, but failed to receive their

13 appropriate meal breaks. They were not properly informed of their meal break rights, and

14 they never waived any of these rights. Instead of taking steps to ensure that the

15 employees were aware of their meal break rights and adopting reasonable procedures to

16 ensure that the breaks were actually taken, Defendant encouraged Plaintiffs and members

17 of the Plaintiff Class to work without availing themselves of their right to completely

18 cease work and have something to eat.

19

51. Throughout the four years immediately preceding the filing of this

20 Complaint, Defendant failed to pay Plaintiffs and Plaintiffs' Class Members any statutory

21 and/or regulatory one-hour pay penalty or wage for failing to provide meal breaks as

22 required by law.

23

52. Under the provisions ofIWC Wage Order No.7, Plaintiffs and members of

24 their Class have suffered a loss of wages equaling one hour's wages, at their regular

25 hourly rates of pay, for all working days in which meal breaks were not properly 26 provided. The exact amount of loss suffered cannot presently be calculated, but likely
will be determined once time and payroll records are produced pursuant to discovery. 27

28

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1

53. Because Defendant failed to provide Plaintiffs and members of their Class

2 with meal periods as required by law, Plaintiffs and their Class are entitled to payment of

3 additional wages as provided by law.

4

5

FIFTH CAUSE OF ACTION

6

REST BREAK VIOLATIONS

7

(California Labor Code Sections 226.7 and IWC Wage Order 7-2001)

8

54. Plaintiffs, individually and on behalf of employees similarly situated,

9 restate, reallege, and incorporate by reference paragraphs 1 through 53 of this Complaint,

10 as though fully set forth in the pleading of this Fifth Cause of Action.

11

55. California Labor Code §226.7 prohibits any employer from requiring any

12 employee to work during any rest period mandated by an applicable IWC Wage Order,

13 and mandates that an employer who fails to provide an employee with a required rest

14 period shall pay that employee one additional hour of pay at the employee's regular rate

15 of compensation for each work day in which the rest period is not provided.

16

56. Defendant was and is subject to the provisions of Labor Code Section

17 226.7 and an applicable IWC Wage Order. IWC Wage Order 7-2001, Subd. 12(A)

18 provides that: "Every employer shall authorize and permit all employees to take rest

19 periods, which insofar as practicable shall be in the middle of each work period. The 20 authorized rest period time shall be based on the total hours worked daily at the rate of

21 ten (10) minutes net rest time per four (4) hours or major fraction thereof. ... Authorized

22 rest period time shall be counted as hours worked for which there shall be no deduction

23 from wages." (Emphasis added)

24

57. Subd. 12(B) of IWC Wage Order No.7 reiterates the remedial language of

25 Labor Code 226.7 by stating that "[i]f an employer fails to provide an employee a rest

26 period in accordance with the applicable provisions of this order, the employer shall pay

27 the employee one (1) hour of pay at the employee's regular rate of compensation for each

28 workday that the rest period is not provided." (Emphasis added)

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1

58. Plaintiffs and members of their Class are informed, believe and allege that

2 for the four years preceding the filing of this action, Defendant rarely, if ever, provided

3 rest breaks, pursuant to the provisions above, to Plaintiffs and the other Class Members

4 when their daily work time exceeded three and one-half (3Y2) hours of work per day.

5

59. Throughout the four years immediately preceding the filing of this

6 Complaint, Defendant failed to pay Plaintiffs or other Class Members any statutory

7 and/or regulatory one-hour pay penalty for failing to provide rest breaks as required by

8 law.

9

60. Under the provisions of Wage Order No.7, Plaintiffs and the other Class

10 Members suffered a loss of wages equal to one hour's pay, at their regular rate of pay, for

11 all work days in which rest breaks were not provided. The exact amount of loss suffered

12 by each Plaintiff and Class member cannot presently be calculated, but likely each

13 amount will be determined once time and payroll records are produced pursuant to

14 discovery.

15

61. Because Defendant failed to provide Plaintiffs and members of their Class

16 with rest periods as required by law, Plaintiffs and their Class are entitled to payment of

17 additional wages as provided by law.

18

19

SIXTH CAUSE OF ACTION

20

UNFAIR COMPETITION AND UNFAIR BUSINESS PRACTICES

21 (California Business and Professions Code Sections 17000 et seq. and 17200 et seq.)

22

62. Plaintiffs, individually and on behalf of employees similarly situated,

23 restate, re-allege, and incorporate by reference paragraphs 1 through 61 of this

24 Complaint, as though fully set forth in the pleading of this Fifth Cause of Action.

25

63. Defendant is a "person" as defined under California Business and

26 ProfeSSions Code § 17021.

27

64. Each of the directors, officers and/or agents of DOLLAR TREE are equally

28 responsible for the acts of the others as set forth in California Business and Professions

Code § 17095.

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1

65. Defendant DOLLAR TREE operates stores in California that sell

2 discounted household items and other merchandise to the "public" as defined in Business

3 and Professions Code §§ 17022 and 17024.

4

66. Plaintiffs are informed and believe that for the last four years, Defendant

5 has intentionally and improperly designated them and members of the Class as

6 "managers" to avoid the payment of overtime wages and other benefits in violation of

7 California Labor Code Sections 201, 203, 226 (a), 510, 512 and 1198, California Penal

8 Code §§ 484 (larceny) and 532 (obtaining labor through false pretenses), IWC Wage

9 Order No. 7-80 (revised), and the guidelines set forth by the Division of Labor Standards

10 Enforcement and the Industrial Welfare Commission, in addition to the standard imposed

11 by the United States Congress following enactment of the Fair Labor Standards Act (29

12 U.S.C. § 201 et seq.).

13

67. Defendant's failure to pay required overtime wages to Plaintiffs and

14 members of their Class has resulted in Defendant DOLLAR TREE under-reporting to

15 federal and state authorities wages earned by Class members and, therefore, under-paying

16 state and federal taxes, employer matching funds, unemployment premiums, Social

17 Security, Medicare, and workers' compensation premiums, in an amount according to the

18 proof at trial.

19

68. Defendant's failure to maintain records of hours worked, failure to pay

20 overtime wages, and their improper and arbitrary designation of Plaintiffs' Class of

21 employees as "managerial" is either unfair and/or an offense punishable by both statutory

22 fine and imprisonment for each violation. Defendant's acts constitute a continuing and

23 ongoing unfair and unlawful activity prohibited by California Business and Professions

24 Code sections 17200 et seq., and justify the issuance of an injunction, the making of

25 restitution and the imposition of other equitable relief pursuant to Business and

26 Professions Code § 17203, both as to DOLLAR TREE STORES, INC. and its managing

27 agents and officers.

28

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1

69. As set forth below, Plaintiffs are informed and believe that by

2 misclassifying Class members as "managers" and failing to pay overtime wages to the

3 members of the Class at each of DOLLAR TREE'S California stores, Defendant has

4 engaged in business within the State of California of selling miscellaneous merchandise

5 to the public, as defined in Business and Professions Code §§§ 17026, 17029, and 17073,

6 for the purpose of injuring competitors and/or destroying competition in violation of

7 Business and Professions Code § 17043.

8

70. Plaintiffs are informed and believe that Defendant has instructed and

9 directed its directors, officers, employees, and/or agents to intentionally and unlawfully

10 designate Class members as managerial employees to avoid payment of overtime wages

11 and corresponding employment taxes as a means of gaining an unfair advantage over

12 DOLLAR TREE'S competitors in violation of Business and Professions Code § 17047.

13 Specifically:

14

a. DOLLAR TREE corporate and/or California regional headquarters

15 limits the number of monthly payroll hours each store may allocate to employees to

16 perform necessary non-exempt tasks such as stocking, customer service, and customer

17 sales. Such hours allocated to hourly employees are woefully inadequate to permit the

18 completion all necessary non-exempt duties in the stores by hourly employees. As a

19 result, Class members are forced to work long hours performing non-exempt duties to

20 maintain required company standards and avoid disciplinary action. And while Class

21 members work these long hours, they are paid their straight salary, instead of legally

22 mandated overtime compensation.

23

b. DOLLAR TREE requires strict adherence to a policy forbidding

24 and/or highly discouraging hourly-paid workers to work overtime. Class members must

25 perform all non-exempt tasks not completed by hourly workers during their scheduled

26 hours. In so doing, they are paid nothing in excess of their straight monthly salary.

27

c. DOLLAR TREE frequently requires class members to cover for the

28 hourly employees when they go on their lunch break, or when hourly employees call in

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1 sick or are otherwise unavailable to report for duty. This practice frequently causes the

2 Class members to work in excess of eight (8) hours per day and forty (40) hours per

3 week. In so doing, they are paid nothing in excess of their straight salary.

4

d. Corporate policy mandates that Class members work six-day work

5 weeks at various times during the year and also requires class members to work more

6 than eight (8) hours per week and forty (40) hours each week. In complying with this

7 policy, Class members are paid nothing in excess of their straight monthly salary.

8

e. Plaintiffs, and all other Class members, have been told by area

9 managers, district managers, regional managers, directors, officers and agents of

10 Defendant that they are "exempt" salaried employees and are not entitled to overtime

11 compensation.

12

71. As a result of these acts and omissions by Defendant, the Plaintiffs, on

13 information and belief, allege that Defendant was able to unfairly compete with other

14 stores (particularly other discount stores) in the State of California by not paying

15 overtime wages in violation of Business and Professions Code, §§ 17000 et seq. and

16 §§ 17200 et seq. Due to these unfair, fraudulent and/or unlawful business practices,

17 DOLLAR TREE has gained a competitive advantage over other comparable stores doing

18 business in the State of California.

19

72. The victims of these unfair and/or unlawful business practices include, but

20 are not limited to, the Class members and other employees of DOLLAR TREE,

21 competing stores in the State of California, and the consuming public. Plaintiffs are

22 informed, believe and allege that Defendant performed the above-mentioned acts with the

23 intent of gaining an unfair competitive advantage and thereby injuring Plaintiffs,

24 employees, other competitors, and the consuming public.

25

73. Each failure to pay overtime wages in violation of Business and

26 Professions Code § 17100 and other statutes is a crime punishable by both a statutory

27 fine and imprisonment. These failures constitute continuing and ongoing unlawful

28 activities prohibited by Business and Professions Code sections 17000 et seq. and 17200

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FIRST AMENDED CLASS ACTION COMPLAINT

CASE NO. 07-2050 SC

Case3:07-cv-02050-SC Document23 Filed07/27/07 Page20 of 32

1 et seq. and justify the issuance of an injunction. All such remedies are cumulative

2 pursuant to Business and Professions Code § 17205.

3

74. Pursuant to Business and Professions Code § 17203, Plaintiffs, on behalf of

4 themselves and all members of their Class, request restitution and/or disgorgement of all

5 wages wrongfully retained by Defendant in violation of Business and Professions Code

6 sections 17000 et seq. and sections 17200 et seq. Furthermore, Plaintiffs request

7 attorneys' fees and costs pursuant to California Code of Civil Procedure § 1021.5, and

8 from the common law doctrine from which this statute is derived, upon a showing of

9 proof, among other things, that they have acted in the public interest and that a significant

10 benefit has been conferred on the general public and/or a large class of persons, as set

11 forth in the Private Attorney General Act and the common law of this State.

12

13

SEVENTH CAUSE OF ACTION

14

FRAUD AND DECEIT

15

75. Plaintiffs, individually and on behalf of each employee similarly situated,

16 hereby restate, reallege, and incorporate by reference herein, paragraphs 1 through 74 of

17 this Complaint, as though fully set forth in the pleadings of this Seventh Cause of Action.

18

76. Plaintiffs allege that the Defendant engaged in fraud and/or deceit against

19 Plaintiffs and each member of Plaintiffs' Class during the entire class period.

20

77. Plaintiffs allege that Defendant DOLLAR TREE, by and through its

21 officers, human resource directors, regional managers, district managers, area managers

22 and others, during the entire class period has known that the Plaintiffs and members of

23 their Class did not meet the legal requirements of exempt employees and knew that the

24 Plaintiffs and members of their Class could not be ordered to work more than eight (8)

25 hours per day or forty (40) hours per week without being paid overtime. Specifically:

26

a.

Defendant regularly observed and required Plaintiffs and members

27 of their Class to perform non-exempt work, through periodic inspections and visits of

28 store locations by Area Managers, District Managers, and Regional Managers.

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FIRST AMENDED CLASS ACTION COMPLAINT

CASE NO. 07-2050 SC

Case3:07-cv-02050-SC Document23 Filed07/27/07 Page21 of 32

1

b. Defendant knew that Plaintiffs and members of their Class were

2 required to perform the work necessary to restock shelves and process customer

3 purchases. Despite this knowledge, Defendant refused to allocate sufficient labor hours

4 for non-exempt employees to complete these duties.

5

c. Defendant knew that Plaintiffs and members of their Class regularly

6 spent far less than fifty percent (50%) of their work time performing management duties,

7 since most store management functions were mostly controlled at the district, regional

8 and corporate levels, and the actual management duties performed at the store level--

9 including the writing of weekly work schedules and occasional training and coaching or

10 directing of staff-- only required a few hours per week to be adequately performed.

11

d. Defendant knew of the requirements of California State and Federal

12 laws pertaining to the requirements of overtime wages and exempt status. More

13 specifically, not only is Defendant, as anyone doing business in California, charged with

14 knowing California labor law, Defendant had been previously sued in 2001 in California

15 for misclassifying its managers as "exempt" from overtime and, therefore, had specific

16 notice of the legal requirements necessary to justify classification of workers as

17 "exempt". Indeed, Defendant participated in a class action settlement of a case entitled

18 Michael Williams v. Dollar Tree Stores Inc., et al., Orange County Superior Court, Case

19 NO.OICC00329. Pursuant to that approved class action settlement, defendants, including

20 Dollar Tree Stores Inc., paid $7,644,240 for the alleged misclassification of "managers"

21 as exempt from overtime. Despite this, Defendant has continued to misclassify its

22 "managers" so as to avoid payment of overtime wages.

23

78. Those officers, human resource directors, regional managers, district

24 managers, area managers and others referred to in the preceding paragraph, who had the

25 knowledge of the true status of the Plaintiffs and members of their Class included Gary

26 Philbin (Senior Vice President of Stores), Rene Lefrancois (Vice President of West Coast

27 Zone), James Fothergill (Chief People Officer), Cindy Warren (Director of

28 Compensation), Betty Martin (Payroll Manager), Cheri Kiper (Manager of Retirement

- 21 -
FIRST AMENDED CLASS ACTION COMPLAINT

CASE NO. 07-2050 SC

Case3:07-cv-02050-SC Document23 Filed07/27/07 Page22 of 32

1 Services and Personnel), David McDearmon (Director of Field Human Resources), Tim

2 Lorenz, Chris Nygren and Jerry Sankey (Zone Human Resource Managers), Candace

3 Camp (Regional Human Resources Manager).

4

79. The persons identified in Paragraph 78 did not merely possess the

5 knowledge attributed to them in Paragraph 77. In addition, they and others devised a

6 corporate policy to classify the Plaintiffs and members of their Class as exempt

7 "managers" who would not be paid overtime, even though the duties they would perform

8 were consistent with those of non-exempt non-managerial rank and file employees. The

9 reason this policy was devised was in order to employ workers to do non-managerial

10 tasks for longer than eight hours a day or forty hours a week without paying them

11 overtime. This policy was devised and first implemented prior to the advent of the class

12 period identified in this complaint, but remained in place when the class period

13 commenced and remains in place to the present date.

14

80. The persons identified in Paragraph 78 instructed regional and area

15 managers, who oversaw operation of more than a single store, to hire store managers as

16 employees who were exempt from overtime but to instruct them to perform non-

17 managerial tasks for most of the time they were on duty. Among those regional and area

18 managers who were instructed to do this were Mike Cassalano and Rick Tellstrom. It

19 was these two men who hired a number of store managers, including the Plaintiffs CRUZ

20 and HANSON. CRUZ and HANSON were both informed by Cassalano and Tellstrom

21 that they were exempt managers who would not be entitled to overtime and whose duties

22 would mostly include the performance of non-managerial tasks.

23

81. Each week throughout the class period identified In this complaint,

24 Defendant issued each Plaintiff and each member of the Plaintiffs' Class a pay check and

25 itemized wage statement. The pay checks and wage statements together provided

26 inaccurate information regarding time worked and money earned. These inaccuracies

27 were not inadvertent. Instead, they were deliberate. They were designed not merely to

28 deprive the Plaintiffs and their class of what they rightfully earned in the form of

- 22 -
FIRST AMENDED CLASS ACTION COMPLAINT

CASE NO. 07-2050 SC

Case3:07-cv-02050-SC Document23 Filed07/27/07 Page23 of 32

1 overtime pay, but also to reinforce their incorrect understanding of their status as exempt

2 managers.

3

82. Each week Defendant authored the checks and wage statements to Plaintiffs

4 and members of their Class, Defendant knew the statements (particularly the assertion

5 that no overtime pay was required to be paid to the class members) were false. The

6 weekly paychecks and pay statements authored by Defendant and provided to Plaintiffs,

7 and members of their class, were themselves fraudulent representations that the

8 "managers" were exempt. These documents are also evidence of the broader fraudulent

9 scheme by Defendant to convince its "managers" of their exempt status.

10

83. These statements were purported by Defendant to be facts and were made

11 for the purpose of inducing Plaintiffs and members of their Class to work in excess of

12 eight (8) hours per day and forty (40) hours per week without any expectation on their

13 part that they were entitled to receive compensation for overtime worked.

14

84. Plaintiffs, and each member of their Class, reasonably believed and relied

15 on Defendant's assertions that they were exempt employees who could be required to

16 work overtime without compensation.

17

85. In reliance on the assertions and to the detriment and prejudice of Plaintiffs

18 and each member of Plaintiffs' Class, Plaintiffs and members of their Class have worked

19 more than eight (8) hours per day and more than forty (40) hours per week, in violation of

20 IWC Wage Order 7-80 (revised) and the Labor Code, without being paid overtime.

21

86. As a direct result of the knowingly false assertions and the concealment of

22 fact by the Defendant, Plaintiffs and members of their Class have earned, but have not

23 been paid, overtime wages, plus interest, in an amount to be proven at trial.

24

87. In addition to causing actual damages, the suppression of true facts and

25 assertion of false information was done with malice, oppression and/or fraud on the part

26 of the Defendant for the purpose of depriving Plaintiffs and members of their Class of

27 their legal property rights to overtime pay and to gain an unfair advantage over

28 Defendant's competitors. Such acts were done with the authorization, ratification, and/or

- 23 -
FIRST AMENDED CLASS ACTION COMPLAINT

CASE NO. 07-2050 SC

Case3:07-cv-02050-SC Document23 Filed07/27/07 Page24 of 32

1 advance knowledge of the officers and/or directors of DOLLAR TREE. Such acts,

2 committed with malice, oppression, and/or fraud, justify the awarding of punitive

3 damages to the Plaintiffs and each member of their Class in an amount commensurate

4 with the enormity of the wrongfulness of the acts themselves, for the purpose of

5 punishing the Defendant and deterring it from conducting itself in a similar fashion at any

6 time in the future.

7

EIGHTH CAUSE OF ACTION

8

UNJUST ENRICHMENT/CONSTRUCTIVE TRUST

9

88. Plaintiffs, individually and on behalf of each employee similarly situated,

10 restate, reallege, and incorporate by reference paragraphs 1 through 85 of this Complaint,

11 as though fully set forth in the pleading of this Eighth Cause of Action.

12

89. By working for Defendant without appropriate pay, Plaintiffs and each

13 member of their Class conferred a substantial benefit on Defendant.

14

90. At the time the wages earned by Plaintiffs and the members of their Class

15 were due and payable by Defendant those unpaid wages became the property of Plaintiffs

16 and each members of their Class. By failing to pay all earned wages to the Plaintiffs and

17 each members of their Class when due, Defendant wrongfully and unjustly enriched itself

18 at the expense of Plaintiffs and each members of their Class.

19

91. Since Defendant has unjustly enriched itself at the expense of Plaintiffs and

20 the members of their Class, equity requires that Defendant be disgorged of that

21 enrichment, and that it be transferred to Plaintiffs and each member of their Class.

22

23

NINTH CAUSE OF ACTION

24

REQUEST FOR PRELIMINARY AND PERMANENT INJUNCTION

25

AND OTHER EQUITABLE RELIEF

26

92. Plaintiffs, individually and on behalf of each employee similarly situated,

27 restate, reallege, and incorporate by reference paragraphs 1 through 89 of this complaint,

28 as though fully set forth in the pleading of this Ninth Cause of Action.

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FIRST AMENDED CLASS ACTION COMPLAINT

CASE NO. 07-2050 SC

Case3:07-cv-02050-SC Document23 Filed07/27/07 Page25 of 32

1

93. Plaintiffs allege that if Defendant is not enjoined from the conduct set forth

2 in the preceding paragraphs of this Complaint, Defendant will continue to fail to pay

3 overtime wages to members of Plaintiffs' Class who do not meet the statutory and

4 regulatory exemption requirements. In addition, Defendant will continue to avoid paying

5 the appropriate taxes, insurance, and unemployment withholdings.

6

94. Plaintiffs request that the Court issue a preliminary and permanent

7 injunction prohibiting the Defendant from requiring Class members, who do not meet the

8 statutory and regulatory guidelines for exemption, from working more than eight (8)

9 hours a day and/or forty (40) hours in any work week without payment to them of

10 overtime wages.

11

95. Plaintiffs also request that the Court order the Defendant to pay restitution

12 to himself and members of his Class in the form of illegally retained earned overtime

13 wages and benefits, and to disgorge all illegally obtained profits arising from Defendant's

14 failure to pay government mandated taxes, state disability insurance premiums, and

15 unemployment taxes.

16

TENTH CAUSE OF ACTION

17

UNLAWFUL FAILURE TO PAY OVERTIME WAGES

18

(29 U.S. § 200 et seq.)

19

96. Plaintiffs, individually and on behalf of all employees similarly situated,

20 hereby restate, reallege, and incorporate by reference paragraphs 1 through 93 of this

21 Complaint, as though fully set forth in the pleading of this Tenth Cause of Action.

22

97. At all relevant times, and during the three (3) year period immediately

23 preceding the filing of this Complaint, Plaintiffs and the members of their Class were

24 protected by 29 U.S.C. § 207 (a)(I), which is also known as the Fair Labor Standards

25 Act, or FLSA. 29 U.S.C. § 207 (a)(I) provides: "Except as otherwise provided in this

26 section, no employer shall employ any of his employees... for a workweek longer than

27 forty hours unless such employee receives compensation for his employment in excess of

28

- 25 -
FIRST AMENDED CLASS ACTION COMPLAINT

CASE NO. 07-2050 SC

Case3:07-cv-02050-SC Document23 Filed07/27/07 Page26 of 32

1 the hours above specified at a rate which is not less than one and one-half times the

2 regular rate at which he is employed."

3

98. In the performance of their duties for Defendant, Plaintiffs and the

4 members of their Class often labored in excess of forty hours per week without receiving

5 overtime compensation for that labor as required by the Fair Labor Standards Act. The

6 precise number of unpaid overtime hours will be proven at trial.

7

99. Defendant has intentionally and improperly designated certain groups of

8 employees, including Plaintiffs and all members of their Class, as exempt "executive" or

9 "administrative" personnel. Defendant has done this in order to avoid the payment of

10 overtime wages and other benefits in violation of29 U.S.C. § 207.

11

100. The job duties of Plaintiffs and each member of Plaintiffs' Class did not,

12 and do not, fit the definition of either exempt executive or administrative employees, as

13 set forth in federal statutory and common law, because:

14

a. Far less than 50% of their work hours have been spent on managerial

15 or administrative (exempt) duties;

16

b. Far more than 50% of their work hours have been spent performing

17 non-exempt duties, including, but not limited to stocking store shelves and processing

18 sales of store product to customers at in-store cashier or check-out stations.

19

c. Plaintiffs and members of their Class have, during all relevant times,

20 never possessed discretion or independent judgment. Instead, they have been required to

21 follow exacting and comprehensive company-wide policies that dictate every aspect of

22 operations, including, but not limited to when, where and how merchandise will be

23 displayed; selection, purchasing and pricing of merchandise to be sold; how many hours

24 employees may be scheduled; procedures for receiving, stocking, processing and

25 assembling merchandise; and store layout and design.

26

d. Plaintiffs and members of their Class cannot set wages of

27 employees, and cannot set policies or procedures which bind the corporation.

28

- 26-
FIRST AMENDED CLASS ACTION COMPLAINT

CASE NO. 07-2050 SC

Case3:07-cv-02050-SC Document23 Filed07/27/07 Page27 of 32

1

e. Plaintiffs and members of their Class work under the direct and close

2 supervision of several Area, District and Regional Managers and cannot make

3 independent decisions that affect their store or the company as a whole.

4

101. Since commencing their employment with Defendant, Plaintiffs and the

5 members of their Class have been required to work between 41 to 60 hours per week.

6 Furthermore, Plaintiffs and the members of their Class have been required to work six

7 days per week at times.

8

102. Under the provisions of 29 U.S.C. § 207, Plaintiffs and each member of

9 their Class should have received overtime wages in a sum to be proven at trial for all

10 hours worked during the applicable limitations period immediately prior to the filing of

11 this Complaint. Because Defendant failed to pay any overtime wages to Plaintiffs and

12 each member of their Class, Plaintiffs and each member of his Class are entitled to

13 recovery all overtime wages which should have been paid, in addition to an equal amount

14 as liquidated damages, as prescribed in 29 U.S.C. § 216 (b).

15

103. Because Defendant has repeatedly and willfully violated § 207 of the Fair

16 Labor Standards Act, Defendant is subject to a civil penalty not to exceed $1,000 for

17 each violation. (See 29 U.S.C. 216 (e)). Plaintiffs and each member of their Class are

18 entitled to recover all civil penalties arising from Defendant's repeated and willful

19 violations of29 U.S.C. § 207.

20

104. Plaintiffs, individually and on behalf of employees similarly situated,

21 request recovery of overtime compensation, liquidated damages, reasonable attorney fees

22 and costs, and the assessment of statutory penalties.

23

24

PRAYER FOR RELIEF

25 WHEREFORE, Plaintiffs, on behalf of themselves and all others similarly situated, pray

26 for relief and judgment against Defendant as follows:

27

28

- 27 -
FIRST AMENDED CLASS ACTION COMPLAINT

CASE NO. 07-2050 SC

Case3:07-cv-02050-SC Document23 Filed07/27/07 Page28 of 32

1

FIRST CAUSE OF ACTION

2

1. For compensatory damages in an amount according to the proof

3 representing the amount of unpaid overtime compensation owed to the Plaintiff and each

4 member of his Class;

5

2. For interest on any overtime compensation due from the day such amounts

6 were due, as permitted in accordance with Labor Code § 218.6, Civil Code § 3289, and

7 other relevant laws of the State of California;

8

3. For reasonable attorney's fees and costs in accordance with California

9 Labor Code § 1194, subdivision (a) and the Private Attorney General's Act (Code of

10 Civil Procedure § 1021.5);

11

4. For all applicable statutory penalties, including those recoverable pursuant

12 to Labor Code Sections 204 (a) and 2699 et seq.

13

5. For such other and further relief as the Court may deem just and

14 appropriate.

15

16

SECOND CAUSE OF ACTION

17

6. For payment of all wages not paid upon termination or discharge;

18

7. For all applicabIe statutory penalties;

19

8. For payment of interest on all wages that were due upon termination or

20 discharge pursuant to California Labor Code § 218.6, California Civil Code § 3289 and

21 other relevant laws of the State of California;

22

9. For attorney fees and costs pursuant to California Labor Code § 218.5,

23 California Code of Civil Procedure § 1021.5, and other relevant laws of the State of

24 California.

25

10. For such other and further relief as the Court may deem just and

26 appropriate.

27

28

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FIRST AMENDED CLASS ACTION COMPLAINT

CASE NO. 07-2050 SC

Case3:07-cv-02050-SC Document23 Filed07/27/07 Page29 of 32

1

THIRD CAUSE OF ACTION

2

11. For an order requiring Defendant to show cause, if any they have, why they

3 should not be enjoined from further violation of California Labor Code § 226 (a) during

4 and after the pendency of this action;

5

12. For payment to Plaintiffs and each member of Plaintiffs' Class the greater

6 of the following: $ 50 for each initial failure to comply with Labor Code § 226 (a) and

7 $100 for each subsequent failure, for a total amount not exceeding $ 4,000, or actual

8 damages suffered as a result of Defendant's violation of Labor Code § 226 (a);

9

13. For payment of attorney fees, and costs as provided for by California Labor

10 Code § 226(e) and all other applicable statutes.

11

14. For any Civil Penalties that may be recoverable pursuant to Labor Code

12 Sections 226.3 and 2699 et seq.

13

15. For such other and further relief as the Court may deem just and

14 appropriate.

15

16

FOURTH CAUSE OF ACTION

17

16. For recovery of statutory penalties, in the amount subject to proof,

18 calculated at a rate of one additional hour of pay for each day a meal break was not

19 provided, for each member of the Class.

20

21

FIFTH CAUSE OF ACTION

22

17. For recovery of statutory penalties, in the amount subject to proof,

23 calculated at a rate of one additional hour of pay for each day a rest break was not

24 provided, for each member of the Class.

25

26

SIXTH CAUSE OF ACTION

27

18. For a preliminary and permanent injunction prohibiting the Defendant from

28 requiring Class members to work more than eight (8) hours a day or forty (40) hours

- 29-
FIRST AMENDED CLASS ACTION COMPLAINT

CASE NO. 07-2050 SC

Case3:07-cv-02050-SC Document23 Filed07/27/07 Page30 of 32

1 in any workweek without payment of overtime wages;

2

19. For an order requiring Defendant to show cause, if any they have, why it

3 should not be enjoined as set forth herein, during the pendency of this action;

4

20. For a temporary restraining order, a preliminary injunction, and a

5 permanent injunction, all enjoining Defendant from failing to pay overtime wages,

6 withholding taxes, matching funds, Social Security, Medicare, unemployment and

7 workers' compensation premiums as required by law and as it relates to their actual cost

8 of doing business, such order being without bond pursuant to Business and Professions

9 Code § 17081;

10

21. Restitution and disgorgement of all sums obtained in violation of Business

11 and Professions Code sections 17000 et seq. and 17200 et seq.

12

22. For such other and further relief as the Court may deem just and

13 appropriate.

14

15

SEVENTH CAUSE OF ACTION

16

23. Actual damages, subject to proof at trial;

17

24. Punitive damages.

18

25. For such other and further relief as the Court may deem just and

19 appropriate.

20

21

EIGHTH CAUSE OF ACTION

22

26. For an Order requiring Defendant to restore to Plaintiffs and members of

23 Plaintiffs' Class all wages and other property withheld unlawfully by Defendant.

24

27. For such other and further relief as the Court may deem just and

25 appropriate.

26

27

28

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FIRST AMENDED CLASS ACTION COMPLAINT

CASE NO. 07-2050 SC

Case3:07-cv-02050-SC Document23 Filed07/27/07 Page31 of 32

1

NINTH CAUSE OF ACTION

2

28. For a preliminary and permanent injunction prohibiting the Defendant from

3 requiring class members to work more than eight (8) hours a day and/or forty (40) hours

4 in any workweek without payment of overtime wages;

5

29. For a preliminary and permanent injunction prohibiting the Defendant from

6 continuing to issue to members of the class inaccurate itemized wage statements, and to

7 correct all inaccurate statements previously issued during the four years prior to the filing

8 of this Complaint;

9

30. For an order requiring Defendant to show cause, if any they have, why they

10 should not be enjoined as set forth herein, during the pendency of this action;

11

31. For a temporary restraining order, a preliminary injunction, and a

12 permanent injunction, all enjoining Defendant from failing to pay overtime wages,

13 withholding taxes, matching funds, Social Security, Medicare, unemployment and

14 workers' compensation premiums as required by law and as it relates to their actual cost

15 of doing business, such order being without bond pursuant to Business and Professions

16 Code section 17081;

17

32. Restitution and disgorgement of all sums obtained in violation of the

18 California Business and Professions Code § 17200 et seq., all relevant sections of the

19 California Labor Code, and all other relevant laws of the State of California.

20

33. For such other and further relief as the Court may deem just and

21 appropriate.

22

23

TENTH CAUSE OF ACTION

24

34. For damages in the amount of all unpaid wages earned by Plaintiffs and

25 each member of Plaintiffs' Class;

26

35. For liquidated damages In the amount of all unpaid wages earned by

27 Plaintiffs and each member of Plaintiffs' Class, as provided for in the Fair Labor

28 Standards Act;

- 31 -
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CASE NO. 07-2050 SC

Case3:07-cv-02050-SC Document23 Filed07/27/07 Page32 of 32

1

36. For penalties in the amount of$ 1,000 for each of Defendant's repeated and

2 willful failures to pay overtime wages as required the Fair Labor Standards Act.

3

37. For such other and further relief as the court may deem just and

4 appropriate.

5

6 Dated: July 27, 2007

EDGAR LA W FIRM

7

8

By:

9

10

11 DEMAND FOR JURY TRIAL
12

13 Plaintiffs hereby respectfully demand a jury trial on all issues triable thereby.
14

15

16 Dated: July 27, 2007 17

18

By:

19

20

21

22

23

24

25

26

27

28

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FIRST AMENDED CLASS ACTION COMPLAINT

CASE NO. 07-2050 SC

 
 Case3:07-cv-02050-SC Document25 Filed08/09/07 Page1 of 15

1 2 3 4 5 6 7
8
9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
KAUI'I', MCCLAIN & MCGUIRE LLP ONE POST STREET
SUITE 2600 SAN FRANCISCO, CA 94104 TELEPHONE (415) 421·3111

MAUREEN E. McCLAIN (State Bar No. 062050) Email: mcclain@kmm.com ALEX HERNAEZ (State Bar No. 201441) Email: hernaez@kmm.com KAUFF McCLAIN & McGUIRE LLP One Post Street, Suite 2600 San Francisco, California 94104 Telephone: (415)421-3111 Facsimile: (415) 421-0938 Attorneys for Defendant DOLLAR TREE STORES, INC.
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

MIGUEL A. CRUZ, and JOHN D. HANSEN,
individually and on behalf of all others similarly situated,
Plaintiffs, v. DOLLAR TREE STORES, INC.,
Defendant.

CASE NO. C 07-02050 SC

DEFENDANT DOLLAR TREE STORES, INC.'S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS' FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

[Fed. R. Civ. Proc. 12{b)(6)]

DATE: September 21,2007 TIME: 10:00 a.m. DEPT: Crtm. 1; 17th Floor JUDGE: Hon. Samuel Conti

COMPLAINT FILED: April 11, 2007

TRIAL DATE:

No date set.

DEFENDANT DOLLAR TREE STORES, INC.'S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS' FIRST AMENDED COMPLAINT;
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

CASE NO. C 07-02050 SC

Case3:07-cv-02050-SC Document25 Filed08/09/07 Page2 of 15

1

TABLE OF CONTENTS

2

Page

3 NOTICE OF MOTION AND MOTION TO DISMISS ........................................................1

4 MEMORANDUM OF POINTS AND AUTHORITIES ........................................................2

5 I.

RELIEF REQUESTED ..........................................................................................2

6 II. III.
7

RELEVANT FACTS & PROCEDURAL HISTORY ...............................................2 ARGUMENT .........................................................................................................3 A. The Motion to Dismiss Standard .................................................................3

8

B. Count VII Should Be Dismissed Because Dollar Tree's Alleged

Misrepresentations of the State and Federal Overtime and Exempt

9

Status Laws Do Not Constitute Actionable Fraud as a Matter Of Law....... .4

10

1. Count VII Should Be Dismissed With Prejudice Because Fraud Claims May Not Be Predicated Upon Mispresentations

11

of Law..............................................................................................4

2. Count VII Should Be Dismissed Because the FAC Alleges No

12

Applicable Exceptions to the Rule that Fraud Claims May Not

Be Predicated Upon Mispresentations of Law .................................6

13

C. Count VII Should Be Dismissed With Prejudice For the Separate

14

and Independent Reason That It Fails to Allege Fraud With Particularity As Required By Rule 9(b) .......................................................8

15 IV. CONCLUSION ....................................................................................................11

16

17

18

19

20

21

22

23

24

25

26

27

28
KAUPP, MCCLAIN
& MCGUIRE LLP
ONE POST STREET SUITE 2600
SAN FRANCISCO, CA 94104
TELEPHONE (415) 421-3111

-i-
DEFENDANT DOLLAR TREE STORES, INC.'S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS' FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

CASE NO. C 07-02050 SC

Case3:07-cv-02050-SC Document25 Filed08/09/07 Page3 of 15

1

TABLE OF AUTHORITIES

2

Page{s}

3

FEDERAL CASES

4 Albrecht v. Lund

845 F.2d 193 (9th Cir. 1988) ................................................................................3, 6, 8 5
B/y-Magee V. California

6

236 F.3d 1014 (9th Cir. 2001) ......................................................................................8

7 Campbell V. Allstate Insurance Co.

1998 U.S. Dist. LEXIS 12550 (C.D. Cal. 1998) ............................................................9

8

Chodos V. W. Publishing

9

292 F.3d 992 (9th Cir. 2002) ........................................................................................3

10 Edwards V. Marin Park, Inc.

356 F.3d 1058 (9th Cir. 2004) ..................................................................................8, 9

11

Foman V. Davis

12

371 U.S. 178 (1962) .....................................................................................................4

13 McGlinchy V. Shell Chemical Co.

845 F.2d 802 (9th Cir. 1988) ..................................................................................4, 10

14

Miller V. Yokohama Tire Corp.

15

358 F.3d 616 (9th Cir. 2004) ....................................................................2, 3,4,6,7,8

16 Neitzke V. Williams

490 U.S. 319 (1989) ("Rule 12(b)(6).............................................................................3

17

North Star International V. Arizona Corp. Commission

18

720 F.2d 578 (9th Cir. 1983) ........................................................................................3

19 Porter V. Jones

319 F.3d 483 (9th Cir. 2003) ........................................................................................8

20

Robertson V. Dean Witter Reynolds, Inc.

21

749 F.2d 530 (9th Cir. 1984) ........................................................................................3

22 Silvas V. ETrade Mortg. Corp.

421 F. Supp. 2d 1315 (S.D. Cal. 2006) ........................................................................3

23

STATE CASES

24

Slocomb V. City of Los Angeles

25

197 Cal. App. 2d 794 (1961) ........................................................................................7

26 Small V. Fritz Companies, Inc.
30 Cal. 4th 167 (2003) ................................................................................................10 27

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TABLE OF AUTHORITIES

(continued)

2

Page(s)

3

STATUTES

4 Am. Jur. 2d of Fraud and Deceit § 97 (2001 ).....................................................................5

5 Fed. R. Civ. Proc. 9 .......................................................................................................1, 2

6 Fed. R. Civ. Proc. 12 .........................................................................................................2

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MISCELLANEOUS

8 Restatement (Second) of Torts § 542, (1997) ...............................................................7, 8 9

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NOTICE OF MOTION AND MOTION TO DISMISS

2

TO PLAINTIFFS AND THEIR ATTORNEYS OF RECORD:

3

PLEASE TAKE NOTICE that on September 21,2007 in Courtroom 1 of the

4 United States District Court, Northern District of California, 450 Golden Gate Avenue,

5 17th Floor, San Francisco, California, at 10:00 a.m., or as soon thereafter as counsel

6 may be heard, Defendant Dollar Tree Stores, Inc. will move the Court to dismiss Count

7 VII ("Fraud and Deceit") of the First Amended Complaint (the "FAC") filed on July 27,

8 2007 by Plaintiffs Miguel A. Cruz and John D. Hansen ("Plaintiffs"). Count VII should be

9 dismissed because (a) fraud claims may not be premised upon misrepresentations of

10 law; and (b) Plaintiffs have not complied with heightened pleading requirements of Fed. 11 R. Civ. Proc. 9(b), which mandates that fraud be alleged with particularity. Dollar Tree

12 respectfully requests that Count VII be dismissed without leave to amend.

13

The motion will be based upon this Notice of Motion and Motion and upon

14 the Memorandum of Points and Authorities, the argument of counsel, the pleadings and

15 papers filed herein, and any other matters properly considered by the Court.

16 DATED: August 9, 2007 17 18 19 20 21 22

Respectfully submitted, KAUFF McCLAIN & McGUIRE LLP

By:

lSI

----A~LE=X~H=E=R~N~A=E=Z----------

Attorneys for Defendant DOLLAR TREE STORES, INC.

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MEMORANDUM OF POINTS AND AUTHORITIES

I.

RELIEF REQUESTED

Pursuant to Fed. R. Civ. Proc. 12(b)(6), Dollar Tree respectfully requests

that the court dismiss Count VII for "Fraud and Deceit" from the First Amended

Complaint (the "FAC") because (a) it is based exclusively upon alleged

misrepresentations of California's wage and hour laws which cannot, as a matter of law, support a fraud claim (see Miller v. Yokohama Tire Corp., 358 F.3d 616, 620-621 (9th

Cir. 2004) (holding that an employer's misrepresentation of the wage and hour laws to its

employee did not constitute actionable fraud as a matter of law)); and (b) it is not pled
with sufficient particularity as required by Fed. R. Civ. Proc. 9(b). Dollar Tree
respectfully requests the Court dismiss Count VII from the FAC with prejudice.

II. RELEVANT FACTS & PROCEDURAL HISTORY
On April 7,2007, Plaintiffs, who are or have been employed by Dollar Tree
as store managers (111112-13), filed their "Complaint for Damages, Injunctive Relief and

Restitution" (the "Complaint"). The Complaint, styled as a putative class action, alleged nine separate causes of action against Dollar Tree. 1 The primary issue Plaintiffs raise is

whether they, as store managers, were classified correctly as "exempt" employees under
m state and federal law 8). On May 9, Dollar Tree moved to dismiss Count VII (Fraud &
Deceit) from the Complaint, pursuant to Rule 12(b)(6), on the ground that it was not pled
with sufficient particularity as required by Fed. R. Civ. Proc. 9(b). On June 29, the Court granted the motion and dismissed Count VII from the Complaint without prejudice. See

June 29, 2007 Order Granting Defendant's Motion to Dismiss Plaintiffs' Fraud Claim (the "June 29 Order") at p. 4. The June 29 Order provided Plaintiffs with clear instructions concerning amendments to the fraud claim:

1 The nine Causes of Action are: Failure to Pay Overtime (Count I); Failure to Pay Unpaid Wages at Termination (Count II); Failure to Provide Accurate Itemized Wage Statements (Count III); Meal Break Violations (Count IV); Rest Break Violations (Count V); Unfair Competition and Unfair Business Practices (Count VI); Fraud and Deceit (Count VII); Unjust Enrichment I Constructive Trust (Count VIII); and Equitable Relief including Preliminary and Permanent Injunctions (IX).

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[Plaintiffs'] fraud claim must meet the heightened pleading requirements of Rule 9(b).... Under the Rule 9(b) standard, Plaintiffs' Complaint fails to give sufficient detail with respect to the time, place, content, and identities of the parties engaged in the fraud .... Plaintiffs should identify specific oral statements or written documents indicative of fraud, including specific information on the timing of the incidents and employees involved.
kL. at pp. 3-4 (internal citations omitted). Pursuant to the June 29 Order, Plaintiffs filed
the FAC on July 27,2007.
III. ARGUMENT
A. The Motion to Dismiss Standard.
"A motion to dismiss pursuant to Rule 12(b)(6) tests the legal sufficiency of the pleadings." Silvas v. E*Trade Mortg. Corp., 421 F. Supp. 2d 1315, 1317 (S.D. Cal. 2006); see also North Star Int'I v. Arizona Corp. Comm'n, 720 F.2d 578, 581 (9th Cir. 1983). "Dismissal is appropriate where the Complaint lacks a cognizable legal theory." /d.; see also Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 533-34 (9th Cir. 1984); Neitzke v. Williams, 490 U.S. 319, 326-27 (1989) ("Rule 12(b)(6) authorizes a court to dismiss a claim on the basis of a dispositive issue of law."). Although the court must assume the FAC's factual allegations are true, "legal conclusions need not be taken as true merely because they are cast in the form of factual allegations." Silvas, 421 F. Supp. 2d at 1317. Further, where an amended complaint is on file, the "district court's discretion to deny leave to amend is 'particularly broad.'" Miller v. Yokohama Tire Corp., 358 F.3d 616,620-621 (9th Cir. 2004) (citing Chodos v. W. Publ'g, 292 F.3d 992, 1003 (9th Cir. 2002) (citations omitted). Leave to amend may be denied when the challenged defects cannot be cured. Albrecht v. Lund, 845 F.2d 193, 195-196 (9th Cir. 1988) (amendment to fraud claim properly denied where alleged misstatements "could not be misrepresentations" as a matter of law). "Repeated failure to cure deficiencies by amendments previously allowed is another valid reason for a district court to deny a

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party leave to amend." McGlinchy v. Shell Chemical Co., 845 F.2d 802,809-810 (9th Cir. 1988) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)).
B. Count VII Should Be Dismissed Because Dollar Tree's Alleged
Misrepresentations of the State and Federal Overtime and Exempt Status Laws Do Not Constitute Actionable Fraud as a Matter Of Law. 1. Count VII Should Be Dismissed With Prejudice Because Fraud
Claims May Not Be Predicated Upon Mispresentations of Law. Plaintiffs allege in Count VII that Dollar Tree is liable for fraud because Dollar Tree (a) misclassified its store managers as "exempt" employees who would not be entitled to overtime (Compl., 1J79); (b) communicated this purported mistake of law to Plaintiffs through Messrs. Cassalano and Tellstrom (1J80);1 and (c) repeatedly ratified the mistake by issuing pay checks and wage statements which did not reflect the payment of overtime compensation (1J1J81-82). Count VII fails because it replicates Count I (Failure to Pay Overtime Wages; see 1J1J26-32) and because it is based upon an incorrect premise: that Dollar Tree may be liable in fraud for misrepresenting to Plaintiffs the "requirements of California State and Federal laws pertaining to the requirements of overtime wages and exempt status." FAC, 1J77(d) at p. 21 :11-12. As a matter of law, Dollar Tree cannot be found liable in fraud for misstating California's wage and hour laws to its employees. See Miller, 358 F.3d at 620-621 (9th Cir. 2004). In Miller, plaintiff alleged he was a victim bf a mail and wire fraud scheme by his employer and its managers "who misrepresented his entitlement to overtime pay and consequently underpaid him." 358 F.3d at 618. Specifically, Miller,alleged that (a) he was ordered to work overtime but did not receive overtime pay; (b) the individually identified managers "falsely represented to him and other employees that they were not entitled to overtime pay because they were salaried,,;2 (c) his employer "had superior

1 Paragraph 80 of the FAC contains the only "communication" Plaintiffs allegedly received: "CRUZ and HANSON were both informed by Cassalano and Tellstrom that they were exempt managers who would not be entitled to overtime and whose duties would mostly include the performance of non-managerial tasks." As described below, this allegation fails to satisfy the particularity requirements of Rule 9(b) and fails to comply with the June 29 Order.

2 Miller's complaint identified three Yokohama Tire Corporation managers by name and accused
(con't)

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knowledge concerning his [exempt or non-exempt] status and entitlement to overtime pay"; and (d) the employer's fraudulent scheme was "furthered" through paychecks, wage statements and W-2 forms which did not reflect the payment of overtime wages.
kl at 618-619. Despite these allegations, the Court dismissed the fraud claim under the
general rule "that fraud cannot be predicated upon misrepresentations of law or misrepresentations as to matters of law. Statements of domestic law are normally regarded as expressions of opinion which are generally not actionable in fraud even if
they are false." kl at 621 (citing Am. Jur. 2d of Fraud and Deceit § 97 (2001)).
Plaintiffs' fraud and deceit claim is factually indistinguishable from Miller. Count VII alleges that (a) class members were required to work overtime hours but were not paid overtime wages (111120, 77, 86); (b) individually identified Dollar Tree officers, human resource directors and managers misrepresented California state and federal overtime laws to the putative class members (1111 77(d), 78-80);3 (c) Dollar Tree had superior knowledge of the overtime laws (1l77(d) (referencing Dollar Tree's participation in a class action settlement for the alleged misclassification of "managers" as exempt from overtime); and (d) the fraudulent scheme was furthered by Dollar Tree's issuance of pay checks and itemized wage statements which did not reflect the payment of overtime wages (111181-83). Whether Dollar Tree was ultimately correct in its interpretation of the overtime law is irrelevant to Plaintiff's fraud claim and, in any event, that issue will be redressed by Plaintiffs' remaining claims for relief. As a matter of law, however, Dollar

(Continued)
"other high-ranking Yokohama employees" of partiCipating in the fraudulent scheme. 358 F.3d at 618.
3 Plaintiffs allege that 11 individually named Dollar Tree "officers, human resource directors, regional managers, district managers and others ..." (1178) both "knew of the requirements of California State and Federal laws pertaining to the requirements of overtime wages and exempt status" (1177(d)) and "devised a corporate policy to classify the Plaintiffs and members of their Class as exempt 'managers' who would not be paid overtime...." (1179). Plaintiffs also allege that two individually named "regional and area managers" informed Plaintiffs "that they were exempt managers who would not be entitled to overtime and whose duties would mostly include the performance of non-managerial tasks." (1180). The failure of these general allegations to satisfy the particularity requirements of Rule 9(b) is discussed below.

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Tree may not be liable for fraud for conveying its opinion about the state of those laws to its employees and potential employees. Miller, 358 F.3d at 620-621.
Dollar Tree respectfully requests the Court dismiss with prejudice Count VII from the FAC on this ground. See Albrecht, 845 F.2d at195-196 (amendment to fraud claim properly denied where alleged misstatements "could not be misrepresentations" as a matter of law).
2. Count VII Should Be Dismissed Because the FAC Alleges No Applicable Exceptions to the Rule that Fraud Claims May Not Be Predicated Upon Mispresentations of Law.
There are four "special situations" justifying reliance upon mispresentations of law which could allow a fraud claim to proceed: "Where the party making the misrepresentation 1) purports to have special knowledge; 2) stands in a fiduciary or similar relation of trust and confidence to the recipient;4 3) has successfully endeavored to secure the confidence of the recipient; 4) or has some other special reason to expect that the recipient will rely on his opinion, misrepresentation of law may result in actionable fraud". See Miller, 358 F.3d at 621. The FAC fails to allege facts supporting any of these situations.
First, the FAC does not allege that Dollar Tree's officers, human resource directors and managers had special knowledge that the alleged class members did not. Miller, 358 F.3d at 621. To begin with, Miller stands for the propositions that employer status alone is insufficient to confer "special knowledge" of the wage and hour laws in a
fraud claim asserted by an employee. !!l ("nor are we willing to impute hypothetical
knowledge on the basis of [the employment relationship])". Nor do the facts alleged here establish "special knowledge." The FAC merely alleges that 11 Dollar Tree officers, human resource directors and managers had "notice" that "Defendant participated in a class action settlement" in a case involving the "alleged misclassification of managers as

4 The Miller Court frames this exception as whether a "confidential relationship" exists between the employee and the employer, as described below. Miller, 358 F.3d at 621.

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exempt from overtime" (,-r,-r 77(d) and 78). Plaintiffs do not allege "special knowledge."

Rather, they allege the identified individuals were aware of facts which were generally

available to the public at large. Indeed, the court records and files pertaining to the

referenced case are a matter of public record (as indicated by Plaintiffs' reference to the

alleged settlement payment amount and underlying allegations). Thus, the knowledge

imparted by the existence of that lawsuit was as available to the identified Dollar Tree

officers, human resource directors and managers as it was to all members of the

putative class. The specific knowledge exception does not apply.

Second, the FAC does not allege that this case involves a confidential

relationship between Dollar Tree and the putative class members. Miller, 358 F.3d at

621. Indeed, "[n]o presumption of a confidential relationship arises from the bare fact

that parties to a contract are employer and employee; rather additional ties must be

brought out in order to create the presumption of a confidential relationship between the

two." ~ (citing Odorizzi v. Bloomfield Sch. Dist., 246 Cal. App. 2d 123 (1996)); see also

Slocomb v. City of Los Angeles, 197 Cal. App. 2d 794, 800 (1961) (affirming dismissal of

fraudulent failure to pay overtime claim because plaintiffs failed to allege that "any

confidential relationship existed between the employers and the employees."). Because

the FAC is void of such allegations, the confidential relationship exception cannot apply.

Third, the FAC does not (and cannot) allege that Dollar Tree's officers,

human resource directors and managers sought "to secure the confidence" of Plaintiffs.

Miller, 358 F.3d at 622. This exception "is usually applicable to situations where 'the

maker gains the other's confidence by stressing their common membership in a religious

denomination, fraternal order, or social group or the fact that they were born in the same

locality." ~ (citing Restatement (Second) of Torts § 542(c) (1977)). The facts alleged in

the FAC are nothing like these situations and the "secured confidence" exception cannot

apply.

Fourth, the FAC does not allege facts supporting the "other special reason"

exception to the general rule that fraud claims may not be premised upon

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misrepresentations of law. Miller, 358 F.3d at 622. For example, there is no claim here
that the Plaintiffs have "a particular lack of intelligence or [are] particularly gullible." kl

(citing Restatement (Second) of Torts § 542, cmt. i (explaining that the main application

of the other special reason clause is "to cases in which the maker of the representation

knows of some special characteristic of the recipient, such as lack of intelligence ...

which gives the maker special reason to expect the opinion to be relied on."). Therefore,

the final exception is not applicable.

For each of the foregoing reasons, the Court should dismiss Count VII from

the FAC with prejudice. See Albrecht, 845 F.2d at 195-196 (amendment to fraud claim

properly denied where alleged misstatements "could not be misrepresentations" as a

matter of law).

C. Count VII Should Be Dismissed With Prejudice For the Separate and
Independent Reason That It Fails to Allege Fraud With Particularity As
Required By Rule 9(b).

To the extent the Court can distinguish any alleged misrepresentations of

fact from the misrepresentations of law, described above, Count VII still fails because it

does not comply with the particularity requirements of Rule 9(b). "To survive a motion to

dismiss for failure to state a claim under Rule 12(b)(6), a complaint generally must

satisfy only the minimal notice pleading requirements of [Federal] Rule [of Civil

Procedure] 8(a)(2)." Porter v. Jones, 319 F.3d 483, 494 (9th Cir. 2003). However,

where "a complaint includes allegations of fraud, Federal Rule of Civil Procedure 9(b)

requires more specificity including an account of the time, place, and specific content of

the false representations as well as the identities of the parties to the

misrepresentations." Edwards v. Marin Park, Inc., 356 F.3d 1058, 1066 (9th Cir. 2004)

(citation omitted); see also June 29 Order at p. 3. "To comply with Rule 9(b), allegations

of fraud must be specific enough togive defendants notice of the particular misconduct

which is alleged to constitute the fraud charged so that they can defend against the

charge and not just deny that they have done anything wrong." Bly-Magee v. California,

236 F.3d 1014, 1019 (9th Cir. 2001) (citation and quotation omitted). Further, Plaintiffs

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must "identify specific oral statements or written documents indicative of fraud, including
specific information on the timing of the incidents and employees involved." .!st. at p. 4:7-
9; see also Campbell v. Allstate Ins. Co., 1998 U.S. Dist. LEXIS 12550 (C.D. Cal. 1998) ("Plaintiff[s] must attribute false or misleading statements to a particular defendant and must set forth specific descriptions of the fraudulent representation. Allegations which are vague and conclusory are insufficient to satisfy Rule 9."). Count VII fails to satisfy these standards.
First, although Plaintiffs amended Count VII to include the names of various Dollar Tree officers, human resource directors and managers (see 1[1[78, 80), they have not amended Count VII to include false and misleading statements of fact by those individuals, whether oral or written. Indeed, Count VII merely alleges that these individuals "and others devised a corporate policy" to misclassify Plaintiffs and the putative class members. 1[79 at p. 22:5-8 (emphasis added).5 Count VII fails to describe whether that policy was oral or written. Similarly, Plaintiffs contend these same
individuals issued instructions to others to follow the purported policy. .!st., 1[80. But, the
FAC does not identify any of the alleged "regional and area managers" who Plaintiffs contend received and implemented those instructions, other than Messrs. Cassalano
and Tellstrom . .!st. Similarly, Count VII includes no facts concerning how, when, to
whom and in what manner those instructions were made. Finally, Plaintiffs allege that Messrs. Cassalano and Tellstrom communicated this "policy" to the named Plaintiffs at an unspecified time and in an unspecified manner. 1[80. Even if these purported misstatements of law could support a fraud claim (and they cannot), they are not particular enough to satisfy Rule 9(b). See Marin Park, Inc., 356 F.3d at 1066 (To avoid dismissal under Rule 9(b), Plaintiffs' Complaint must "state the time, place, and specific

5 The inclusion of the phrase "and others" renders the allegation worthless to Dollar Tree. In order "to defend against the charge and not just deny that it has done anything wrong," Dollar Tree must know who Plaintiffs believe "possessed knowledge of wrongdoing" and improperly "suppressed" this knowledge (1[78). Likewise, it must know who Plaintiffs believe made the supposedly false representations (1[79).

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content of the false representations."); see also June 29 Order at p. 3 ("Plaintiffs' Complaint fails to give sufficient detail with respect to the time, place, content, and identities of the parties engaged in the fraud.")
Second, the purportedly fraudulent policy is insufficiently alleged to establish either a predicate factual misrepresentation or detrimental reliance. See Small v. Fritz Companies, Inc., 30 Cal. 4th 167, 173 (2003) (setting forth the elements of a fraud and deceit claim). In fact, the generally alleged policy contains no factual misstatements at all, much less a "specific oral statement[] or "written document[] indicative of fraud." June 29 Order at p. 4. Count VII merely alleges that Dollar Tree's
overtime policy states that it does not pay its store managers for overtime. ,-r 79. Count
VII also alleges that Dollar Tree did not pay its store managers overtime in conformity
with this policy. ,-r 85. Contrary to Plaintiffs' argumentative pleading, Dollar Tree did not
deceive Plaintiffs or putative class members; Dollar Tree paid its store managers as it represented it WOUld. Nor can the Plaintiffs or putative class members argue that they relied on these statements to their damage. Indeed, based on these allegations, the Plaintiffs worked overtime hours with full knowledge that Dollar Tree did not intend to pay it. Thus, the written documents (e.g. pay checks and wage statements) merely confirmed the understanding both Dollar Tree and the Plaintiffs had concerning
overtime. See id.,,-r,-r 81-85. If that understanding was premised upon a
misinterpretation of law, Plaintiffs will have an opportunity to address it through their remaining claims for relief.
Plaintiffs have not alleged fraud here, much less made a particularized showing, despite having clear instructions from the Court in the June 29 Order. Count VII should therefore be dismissed with prejudice. McGlinchy, 845 F.2d at 809-810 ("Repeated failure to cure deficiencies by amendments previously allowed is another valid reason for a district court to deny a party leave to amend.").

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IV. CONCLUSION For the foregoing reasons, the court should dismiss Count VII pursuant to
Fed. R. Civ. proc. 12(b)(6).

DATED: August 9, 2007

Respectfully submitted, KAUFF McCLAIN & McGUIRE LLP

120447.v3

By:

lSI

----------~~-----------------

ALEX HERNAEZ

Attorneys for Defendant DOLLAR TREE STORES, INC.

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1 Donald S. Edgar, Esq. (SBN 129324) JereII!y R. Fietz, Esg.- (8BN 200396)
2 Rex Grady, Esq. (SBN 232236) EDGAR LAW FIRM
3 408 College Avenue Santa Rosa, California 95401
4 Tel: (707) 545-3200 Fax: (707) 578-3040
5 Attorneys for Plaintiffs,
6 MIGUEL A. CRUZ and JOHN D. HANSEN, individually and on
7 behalf of others similarly situated

8

9

UNITED STATES DISTRICT COURT

10

NORTHERN DISTRICT OF CALIFORNIA

11

12 MIGUEL A. CRUZ and JOHN D.
HANSEN, individually and on behalf of 13 all others similarly situated,

CASE NO. 07-02050 SC CLASS ACTION

14

Plaintiffs,

15

vs.

OPPOSITION TO DEFENDANT
DOLLAR TREE STORE INC.'S MOTION TO DISMISS

16 DOLLAR TREE STORES, INC.,
17 Defendants.
18

Honorable Judge Samuel Conti Courtroom 1, 17th Floor

19

Time: 10:00 a.,m., September 21, 2007

20

21

22

23

24

25

26

27

28

OPPOSITION TO MOTION TO DISMISS

- 1-

CASE NO. 07-2050 SC

Case3:07-cv-02050-SC Document35 Filed08/31/07 Page2 of 18

1

TABLE OF CONTENTS

2

3

I. INTRODUCTION ......................................................................p. 4.

4

II. ARGUMENT .............................................................................p. 4.

5

A. PLAINTIFF'S HAVE PLED FRAUD WITH THE REQUISITE

6

DEGREE OF PARTICULARITY

7

1. What Rule 9 Requires ............................................................p. 4.

8

2. What Plaintiffs Have Actually Pled............................................p. 7.

9

3. Plaintiffs Have Satisfied The Heightened Pleading Requirement

10

By Providing Sufficient Information As To The Details

11

Of Defendant's Fraud...........................................................p.I2.

12

B. THE MISCLASSIFICATION OF PLAINTIFFS AS MANAGERS

13

WAS A MISTATEMENT OF FACT, NOT OF LAW ........................ p. 14

14

III. CONCLUSION .........................................................................p. 17.

15

16

17

18

19
20

21

22

23

24

25

26

27
28

OPPOSITION TO MOTION TO DISMISS

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CASE NO. 07-2050 SC

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1

TABLE OF AUTHORITIES

2

Statutory Authority

3

4

California Labor Code § 510 .............................................................p. 15

5

California Labor Code § 515 (a) ......................................................... p. 15

6

California Labor Code § 515 (e) ......................................................... p. 16

7

California Code ofRegulations §11070 .................................................p. 16

8

Fed. Rule ofCiv. Proc. 8, ...................................................................p. 5

9

Fed. Rule ofCiv. Proc. 9 (b), ...................................................... pp. 4-7,12

10

Fed. Rule ofCiv. Proc. 12 (b)(6), ..........................................................p. 1

11

12

Common Law Authorities

13

Alpharma Inc. Sees. Litig, In Re (3d Cir. 2004) 372 F.3d 137 ................................. p. 6

14

Alternative Sys. Concepts, Inc. v. Synopsys, Inc. (1st Cir. 2004) 374 F.3d 23 ................p. 6

15

Ely-Magee v. California, 236 F.3d 1014, 1019 (9th Cir.2001), ................................ p. 7

16

DiLeo v. Ernest & Young (ih Cir. 1990) 901 F.2d 624 ......................................... p. 6

17

Miller v. Yokohama Tire Corp. (9th Cir. 2004) 358 F.3d 616 ............................pp. 14-18

18

Sepulveda v. Wal-Mart Stores, Inc. (N.D. 2006) 237 F.R.D. 229 ............................p. 16

19

Seville Indus. Machinery Corp. v. Southmost Machinery Corp.,

20

742 F.2d 786, at 791, (3 Cir., 1984), ................................................p. 7

21

Swartz v. KPMG LLP 476 F.3d 756, at 764 (9th Cir.2007), ...................................p. 7

22

United States ex rei. Doe v. Dow Chern. Co. (5th Cir. 2003) 343 F.3d. 235 .................p. 6

23

24

Secondary Authorities

25

Federal Civil Rules Handbook 2007, ...............................................pp. 5, 6

26

27

28

OPPOSITION TO MOTION TO DISMISS

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CASE NO. 07-2050 SC

Case3:07-cv-02050-SC Document35 Filed08/31/07 Page4 of 18

1

I. INTRODUCTION

2

Defendant alleges that Plaintiffs' complaint is defective in two ways. The first

3 way is familiar to this Court due to an earlier Motion to Strike-that is, that the Plaintiff s

4 cause of action for fraud lacks sufficient particularity. The second alleged defect in the

5 Plaintiff s complaint is entirely novel-that is, that misstatement of wage and hour law

6 cannot form the basis of fraud. In truth, these defects are non-existent. On an earlier

7 occasion, it is true that the Court determined the Plaintiff s original complaint to lack

8 sufficient particularity, and dismissed the Fraud Cause of Action with leave to amend.

9 Plaintiff has indeed amended the Complaint and provided all the particularity required at

10 the pleading stage. With respect to the Defendant's claim that misstatement of wage and

11 hour law cannot form the basis of a fraud action, Plaintiff of course wonders why this

12 argument was not brought up in the Defendant earlier demurrer. More importantly,

13 Plaintiff agrees with the Defendant's reading of the case from which it derives this rule.

14 What Plaintiff disagrees with is its application to the Plaintiffs case. Specifically, we are

15 not dealing with a misstatement of law as the basis of fraud. Instead, Plaintiff has alleged

16 a misstatement of fact in the form of an intentional misclassification of employees as

17 overtime-exempt managers. Defendants did not misrepresent the law at all. They are

18 correct in their conclusion that managers are exempt from overtime. It is their

19 misrepresentation of the actual classification that was the basis of the fraud.

20

II. ARGUMENT

21

A. PLAINTIFF'S HAVE PLED FRAUD WITH THE REQUISITE DEGREE

22

OF PARTICULARITY

23

1. What Rule 9 Requires

24

Federal Rule 9 states: "in all averments of fraud or mistake, the circumstances

25 constituting fraud or mistake shall be stated with particularity." On its face, what this

26 Rule means is that those alleging fraud must go beyond a mere accusation that a

27 Defendant violated the several elements of fraud. In other words, a Plaintiff must

28 generate a pound or two of factual flesh to cover the bare bones of the pleading.

OPPOSITION TO MOTION TO DISMISS

-4-

CASE NO. 07-2050 SC

Case3:07-cv-02050-SC Document35 Filed08/31/07 Page5 of 18

1

Because it is a general rule, lacking particularity, Congress left the door open to

2 the Courts to more precisely define what constituted appropriate pleading when a

3 Plaintiff alleged fraud in the circumstances of each particular case. As noted by the

4 authors of the Federal Rules handbooks, the Courts have indeed filled in the gaps in

5 Congress' language, as well as explained the purpose of the Rule itself. The Courts have

6 determined that "requiring that such claims be pled with particularity: (1) ensures that the

7 defendants have fair notice of the plaintiff s claim, (2) helps safeguard the defendants

8 against spurious accusations, and the resulting reputational harm, (3) reduces the

9 possibility that a meritless fraud claim can remain in the case, by ensuring that the full

10 and complete factual allegation is not postponed until discovery, and (4) protects

11 defendants against "strike" suits." (Federal Civil Rules Handbook 2007, p. 300).

12

The Courts have provided further guidance on what is required of those who

13 would plead fraud. "When pleading fraud the claimant must allege more than mere

14 conclusory allegations of fraud or the technical elements of fraud." (Id., pp. 300-301).

15 The Courts have stated that:

16

17

the amount of particularity or specificity required for pleading fraud

18

or mistake will differ from case to case, but generally depends upon

19

the amount of access the pleader has to the specific facts,

20

considering the complexity of the claim, the relationship of the

21

parties, the context in which the alleged fraud or mistake occurs, and

22

the amount of specificity necessary for the adverse party to prepare a

23

responsive pleading. (Id., at p. 30 1-302 (emphasis added)).

24

25

The Courts have been careful to point out:

26

27

[t]he particularity requirement of Rule 9 is not.. .intended to abrogate

28

or mute the Rule 8 "notice" pleading standard that applies in federal

courts, and the two Rules must be read in harmony with one another.
- 5-

OPPOSITION TO MOTION TO DISMISS

CASE NO. 07-2050 SC

Case3:07-cv-02050-SC Document35 Filed08/31/07 Page6 of 18

1

Plaintiffs are still obligated to plead only notice of a fraud or mistake

2

claim; Rule 9(b) simply compels a higher degree of notice. Thus,

3

Rule 9(b) generally requires the pleader to fill-in "the first paragraph

4

of any newspaper story"-the "who, what, when, where, and how"

5

of the alleged scheme. In the context of fraud claims, many courts

6

require the pleader to allege (1) the time, place, and contents of the

7

false representations or omissions, and explain how they were

8

fraudulent, (2) the identity of the person making the

9

misrepresentations, (3) how the misrepresentations misled the

10

plaintiff, and (4) what the speaker gained from the fraud. (Id., p.

11

302).1

12

13

The degree and style of the information required to satisfy the heightened pleading

14 requirement indeed varies from cases to case. As described by the Third Circuit:

15

16

Rule 9(b) requIres plaintiffs to plead with particularity the

17

"circumstances" of the alleged fraud in order to place the defendants on

18

notice of the precise misconduct with which they are charged, and to

19

safeguard defendants against spurious charges of immoral and fraudulent

20

behavior. It is certainly true that allegations of "date, place or time" fulfill

21

these functions, but nothing in the rule requires them. Plaintiffs are free to

22

use alternative means of injecting precision and some measure of

23

substantiation into their allegations of fraud.... The complaint [before the

24

court] sets forth the nature of the alleged misrepresentations, and while it

25

does not describe the precise words used, each allegation of fraud

26 I The Handbook cites the following cases as following the who, what, when, where, and
27 how rule of pleading fraud: In re Alpharrna Inc. Sees. Litig. (3d Cir. 2004) 372 F.3d 137,
Alternative Sys. Concepts, Inc. v. Synopsys, Inc. (1 st Cir. 2004) 374 F.3d 23, United Stftttes ex reI. 28 Doe v. Dow Chern. Co. (5th Cir. 2003) 343 F.3d. 235, and DiLeo v. Ernest & Young (i Cir.
1990) 901 F.2d 624.
- 6-

OPPOSITION TO MOTION TO DISMISS

CASE NO. 07-2050 SC

Case3:07-cv-02050-SC Document35 Filed08/31/07 Page7 of 18

1

adequately describes the nature and subject of the alleged

2

misrepresentation. (Seville Indus. Machinery Corp. v. Southmost

3

Machinery Corp., 742 F.2d 786, at 791, (3 Cir., 1984)).

4

5

The 9th Circuit has highlighted the root purpose of the rule thusly:

6 To comply with Rule 9(b), allegations of fraud must be specific enough to
7 give defendants notice of the particular misconduct which is alleged to
8 constitute the fraud charged so that they can defend against the charge and
9 not just deny that they have done anything wrong. (Swartz v. KPMG LLP
10 476 F.3d 756, at 764 (9th Cir.2007); citing Bly-Magee v. California, 236
11 F.3d 1014, 1019 (9th Cir.2001) (internal quotations omitted)).2
12

13
Defendants in this case cannot credibly assert, in the face of the very detailed 14
Complaint in this case, that Plaintiffs have pled mere conclusory allegations. Defendants
15
in this case cannot credibly assert that they do not understand the nature of Plaintiffs' 16
claims or the fraud alleged, and cannot adequately respond.
17
2. What Plaintiffs Have Actually Pled 18
In order to prevail on its Motion, Defendant must be able to demonstrate that the 19
Plaintiffs pled merely the bare elements of fraud, without providing the adequate 20
particulars of the alleged misconduct. Upon examination of the Complaint, it is clear that 21
Defendant cannot prevail.
22
In its Order dated June 29, 2007, the Court stated: "to satisfy Rule 9(b), Plaintiffs 23
should identify specific oral statements or written documents indicative of fraud, 24
including specific information on the timing of the incidents and employees involved." 25

26

27 2 It is worth noting that the Court's greatest expression of concern in the Swartz case was
28 that there were multiple defendants and the complaint failed to identify which of the defendants
was involved in the various misrepresentations alleged. The case at bar contains only one Defendant. There is no such uncertainty in this_'1s~.

OPPOSITION TO MOTION TO DISMISS

CASE NO. 07-2050 SC

Case3:07-cv-02050-SC Document35 Filed08/31/07 Page8 of 18

1

The Plaintiff heeded the Court's ruling and amended its Seventh Cause of Action

2 accordingly. The relevant portion of the Plaintiffs' amended Seventh Cause of Action

3 reads as follows:

4

5

77. Plaintiffs allege that Defendant DOLLAR TREE, by and

6

through its officers, human resource directors, regional managers, district

7

managers, area managers and others, during the entire class period has

8

known that the Plaintiffs and members of their Class did not meet the legal

9

requirements of exempt employees and knew that the Plaintiffs and

10

members of their Class could not be ordered to work more than eight (8)

11

hours per day or forty (40) hours per week without being paid overtime.

12

Specifically:

13

a.

Defendant regularly observed and required Plaintiffs and

14

members of their Class to perform non-exempt work, through periodic

15

inspections and visits of store locations by Area Managers, District

16

Managers, and Regional Managers.

17

b. Defendant knew that Plaintiffs and members of their Class

18

were required to perform the work necessary to restock shelves and process

19

customer purchases. Despite this knowledge, Defendant refused to allocate

20

sufficient labor hours for non-exempt employees to complete these duties.

21

c. Defendant knew that Plaintiffs and members of their Class

22

regularly spent far less than fifty percent (50%) of their work time

23

performing management duties, since most store management functions

24

were mostly controlled at the district, regional and corporate levels, and the

25

actual management duties performed at the store level-- including the

26

writing of weekly work schedules and occasional training and coaching or

27

directing of staff-- only required a few hours per week to be adequately

28

performed.

OPPOSITION TO MOTION TO DISMISS

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CASE NO. 07-2050 SC

Case3:07-cv-02050-SC Document35 Filed08/31/07 Page9 of 18

1

d. Defendant knew of the requirements of California State and

2

Federal laws pertaining to the requirements of overtime wages and exempt

3

status. More specifically, not only is Defendant, as anyone doing business

4

in California, charged with knowing California labor law, Defendant had

5

been previously sued in 2001 in California for misclassifying its managers

6

as "exempt" from overtime and, therefore, had specific notice of the legal

7

requirements necessary to justify classification of workers as "exempt".

8

Indeed, Defendant participated in a class action settlement of a case entitled

9

Michael Williams v. Dollar Tree Stores Inc., et al., Orange County Superior

10

Court, Case No. 01CC00329. Pursuant to that approved class action

11

settlement, defendants, including Dollar Tree Stores Inc., paid $7,644,240

12

for the alleged misclassification of "managers" as exempt from overtime.

13

Despite this, Defendant has continued to misclassify its "managers" so as to

14

avoid payment of overtime wages.

15

78. Those officers, human resource directors, regional managers,

16

district managers, area managers and others referred to in the preceding

17

paragraph, who had the knowledge of the true status of the Plaintiffs and

18

members of their Class included Gary Philbin (Senior Vice President of

19

Stores), Rene Lefrancois (Vice President of West Coast Zone), James

20

Fothergill (Chief People Officer), Cindy Warren (Director of

21

Compensation), Betty Martin (Payroll Manager), Cheri Kiper (Manager of

22

Retirement Services and Personnel), David McDearmon (Director of Field

23

Human Resources), Tim Lorenz, Chris Nygren and Jerry Sankey (Zone

24

Human Resource Managers), Candace Camp (Regional Human Resources

25

Manager).

26

79. The persons identified in Paragraph 78 did not merely possess

27

the knowledge attributed to them in Paragraph 77. In addition, they and

28

others devised a corporate policy to classify the Plaintiffs and members of

OPPOSITION TO MOTION TO DISMISS

-9-

CASE NO. 07-2050 SC

Case3:07-cv-02050-SC Document35 Filed08/31/07 Page10 of 18

1

their Class as exempt "managers" who would not be paid overtime, even

2

though the duties they would perform were consistent with those of non-

3

exempt non-managerial rank and file employees. The reason this policy

4

was devised was in order to employ workers to do non-managerial tasks for

5

longer than eight hours a day or forty hours a week without paying them

6

overtime. This policy was devised and first implemented prior to the

7

advent of the class period identified in this complaint, but remained in place

8

when the class period commenced and remains in place to the present date.

9

80. The persons identified in Paragraph 78 instructed regional

10

and area managers, who oversaw operation of more than a single store, to

11

hire store managers as employees who were exempt from overtime but to

12

instruct them to perform non-managerial tasks for most of the time they

13

were on duty. Among those regional and area managers who were

14

instructed to do this were Mike Cassalano and Rick Tellstrom. It was these

15

two men who hired a number of store managers, including the Plaintiffs

16

CRUZ and HANSON. CRUZ and HANSON were both informed by

17

Cassalano and Tellstrom that they were exempt managers who would not

18

be entitled to overtime and whose duties would mostly include the

19

performance of non-managerial tasks.

20

81. Each week throughout the class period identified In this

21

complaint, Defendant issued each Plaintiff and each member of the

22

Plaintiffs' Class a pay check and itemized wage statement. The pay checks

23

and wage statements together provided inaccurate information regarding

24

time worked and money earned. These inaccuracies were not inadvertent.

25

Instead, they were deliberate. They were designed not merely to deprive

26

the Plaintiffs and their class of what they rightfully earned in the form of

27

overtime pay, but also to reinforce their incorrect understanding of their

28

status as exempt managers.

OPPOSITION TO MOTION TO DISMISS

- 10 -

CASE NO. 07-2050 SC

Case3:07-cv-02050-SC Document35 Filed08/31/07 Page11 of 18

1

82. Each week Defendant authored the checks and wage

2

statements to Plaintiffs and members of their Class, Defendant knew the

3

statements (particularly the assertion that no overtime pay was required to

4

be paid to the class members) were false. The weekly paychecks and pay

5

statements authored by Defendant and provided to Plaintiffs, and members

6

of their class, were themselves fraudulent representations that the

7

"managers" were exempt. These documents are also evidence of the

8

broader fraudulent scheme by Defendant to convince its "managers" of

9

their exempt status.

10

83. These statements were purported by Defendant to be facts and

11

were made for the purpose of inducing Plaintiffs and members of their

12

Class to work in excess of eight (8) hours per day and forty (40) hours per

13

week without any expectation on their part that they were entitled to receive

14

compensation for overtime worked.

15

84. Plaintiffs, and each member of their Class, reasonably

16

believed and relied on Defendant's assertions that they were exempt

17

employees who could be required to work overtime without compensation.

18

85. In reliance on the assertions and to the detriment and

19

prejudice of Plaintiffs and each member of Plaintiffs' Class, Plaintiffs and

20

members of their Class have worked more than eight (8) hours per day and

21

more than forty (40) hours per week, in violation of IWC Wage Order 7-80

22

(revised) and the Labor Code, without being paid overtime.

23

24 3. Plaintiffs Have Satisfied The Heightened Pleading Requirement By Providing

25

Sufficient Information As To The Details Of Defendant's Fraud

26

Again, Rule 9(b) merely requires a summary of the details of the fraud, not minute

27 recreation of every step of the fraud and descriptions of all evidence, including all

28 documents, which confirm its existence. The Standard relied by Federal Courts

OPPOSITION TO MOTION TO DISMISS

- 11 -

CASE NO. 07-2050 SC

Case3:07-cv-02050-SC Document35 Filed08/31/07 Page12 of 18

1 throughout the United States is the one noted earlier in this Opposition: the who, what,

2 when, where, why, how standard.

3

While Plaintiffs provided far more specific information than the following, a

4 summary of the particulars of the allegations reveals the "who, what, how, when and

5 where" of the fraud alleged.

6

The WHO: Gary Philbin (Senior Vice President of Stores), Rene Lefrancois

7 (Vice President of West Coast Zone), James Fothergill (Chief People Officer), Cindy

8 Warren (Director of Compensation), Betty Martin (Payroll Manager), Cheri Kiper

9 (Manager of Retirement Services and Personnel), David McDearmon (Director of Field

10 Human Resources), Tim Lorenz, Chris Nygren and Jerry Sankey (Zone Human Resource

11 Managers), Candace Camp (Regional Human Resources Manager), Rick Cassalano, and

12 Rick Tellstrom.

13

The WHAT: The false classification and treatment of what were in fact regular

14 rank and file employees as "Store Managers" who were "exempt" from overtime and the

15 induction of reliance by these employees that this classification was factually correct.

16

The HOW: By having a corporate policy and practice that purposefully

17 misclassifies certain employees as "store managers" in order to avoid paying them

18 overtime.

19

The WHEN: For the entire employment of the class representatives, and the class

20 period.

21

The WHERE: Every single Dollar Tree Store in the State of California, which, as

22 noted elsewhere in the Complaint, number more than 200.

23

In addition, the Complaintif indicates the END to which the Fraud was aimed: to

24 induce the reliance by its "Store Managers" on the misclassification of rank and file

25 employees as "Store Managers" and thus be able to retain money that it was actually

26 lawfully required to pay its "Store Managers" in the form of overtime wages.

27

Defendant, in its very short discussion of the Plaintiffs supposed failure to plead

28 fraud with particularity states that Plaintiff has failed to "include false and misleading

OPPOSITION TO MOTION TO DISMISS

- 12 -

CASE NO. 07-2050 SC

Case3:07-cv-02050-SC Document35 Filed08/31/07 Page13 of 18

1 statements of fact by" the individuals named, "whether oral or written," that Plaintiffs

2 have failed to "describe whether the policy was oral or written," failed to "identify any of

3 the alleged 'regional and area managers' who Plaintiffs contend received and

4 implemented those instructions, other than Messrs. Cassalano and Tellstrom, and failed to

5 identify when precisely Cassalano and Tellstrom.

6

In fact, Plaintiff s Complaint identified each paycheck and itemized wage

7 statement as false and misleading statements incident to the alleged fraud. The

8 Complaint identified a dozen individuals who were charged with authorizing and issuing

9 these paychecks and wage statements to the Plaintiff and his Class. It indicated that these

10 checks and statements were in writing. The Complaint did indeed identify Messrs.

11 Cassalano and Tellstrom as two of the area or regional managers involved in

12 implementing the fraudulent policy and practice of hiring "Store Managers" but primarily

13 employing them to perform rank and file duties (Plaintiff certainly is not required to

14 name every single area or regional manager involved in the scheme). There are certainly

15 many more facts that could have been pled. But, Plaintiff is not required by law to pled

16 all of the facts incident to a fraudulent scheme. It only need plead facts enough to

17 provide the Defendant .with sufficient notice.

18

Finally, we should make note of the Defendant's statement that Defendant never

19 made any factual misstatements that support any allegation of fraud-that it paid the

20 Plaintiffs what it promised it would pay them, and that Plaintiffs worked more than forty

21 hours per week knowing they would not receive overtime pay. Plaintiffs do not contest

22 this. This is not where the fraud lies. The fraud lies in the Defendant's classification of

23 the Plaintiffs as "managers" in order to exempt them from overtime pay. Every time one

24 of these "managers" was issued a pay check and wage statement, and no extra payment

25 for hours worked in excess of eight per day and/or forty per week was indicated or

26 provided, the Defendant made a misstatement of fact that was intended to reinforce the

27 Plaintiffs' understanding, and induce their detrimental reliance thereon, that they were in

28 fact "managers" who were thus not entitled to overtime, all the while employing the

OPPOSITION TO MOTION TO DISMISS

- 13 -

CASE NO. 07-2050 SC

Case3:07-cv-02050-SC Document35 Filed08/31/07 Page14 of 18

1 Plaintiffs almost exclusively to perform routine shelf stocking and cashiering duties

2 indistinguishable from the duties performed by mere rank and file employees.

3 B. THE MISCLASSIFICATION OF PLAINTIFFS AS MANAGERS WAS A

4

MISTATEMENTOFFACTNOTOFLAW

5

In its fifteen page Motion, Defendant uses a mere two and a half pages to discuss

6 the alleged failure of Plaintiffs' to plead fraud with the requisite degree of particularity.

7 The rest of the Motion is dedicated to a discourse on the case of Miller v. Yokohama Tire 8 Corp. (9th Cir. 2004) 358 F.3d 616. The case is manifestly off point, hence Defendant's

9 discourse upon it is irrelevant.

10

Miller it should be pointed out dealt with RICO claims. RICO is a federal

11 criminal statute aimed at punishing, deterring and ultimately defeating organized crime.

12 The standards used to define the elements of RICO violations are federally devised.

13 They are not the product of state positive law, or state common law. As we consider the

14 applicability of the rule of Miller to our case, these distinctive hallmarks of Miller should

15 not be lost sight of.

16

The case itself arose in California. The Plaintiffs in the case were employees of

17 the Defendant. They alleged that the communication to them by the Defendant's

18 managers that they were salaried rather than hourly employees and thus not eligible for

19 overtime pay constituted a predicate act of criminal fraud. Fraud in the RICO context

20 was said by the Court to have already been defined by the Supreme Court of the United

21 States. The Supreme Court had determined that RICO fraud was consistent with the

22 generic common law definition of fraud. The Miller Court agreed that the employer's

23 managers had indeed misstated California law. However, the Court concluded that,

24 "under the common law," "fraud cannot be predicated upon misrepresentations of law or

25 misrepresentations as to matters of law."

26

We must emphasize that the Miller decision was a case arising under federal law

27 and involved the Court relying on federally adopted definitions while interpreting a

28

OPPOSITION TO MOTION TO DISMISS

- 14 -

CASE NO. 07-2050 SC

Case3:07-cv-02050-SC Document35 Filed08/31/07 Page15 of 18

1 federal criminal statute. It was not a case interpreting the meaning of California law, nor

2 even of California's definition of what civil fraud is.

3

But this observation is of only marginal importance. What is pre-eminently

4 important in this discussion of Miller IS that Miller was concerned with

S misrepresentations of law, and that the Rule articulated in Miller was that

6 misrepresentations of law cannot serve as predicates to fraud. Miller is unmistakably

7 distinguishable on this point from the case brought by the Cruz Plaintiffs. The Cruz

8 Plaintiffs' case hinges, not on misrepresentations of law by the Defendant, but on the

9 Defendant's misrepresentation offact.

10

It is true that the Yokohama managers in Miller misstated the law. The Yokohama

11 Managers stated that salaried employees are not entitled to overtime under California

12 law. Plaintiff does not contest the general rule that mere misstatements of law are not

13 actionable as fraud. What Plaintiffs do contest is the similarity of their case with Miller.

14 Plaintiffs have not alleged that Defendant's fraud rested primarily on the

IS misrepresentation of law. Indeed, the law was actually correctly represented. Plaintiffs

16 were told that managers in California are exempt from overtime. Instead, Plaintiffs have

17 alleged that the fact they were truly managers was misrepresented. Plaintiffs alleged that

18 they were employed to perform all the duties of a rank and file employee, but were

19 classified as "managers" who, in California, are exempt for overtime compensation laws.

20 Whether someone is a manager in California is a question, of fact, not law.

21

California Labor Code §SIS (a) permits the Industrial Welfare Commission to

22 establish exemptions from the overtime pay requirements found in Labor Code §S10 with

23 respect to "executive, administrative, and professional employees." An exempt

24 employee, says the Legislature, must be "primarily engaged in the duties that meet the

2S test of the exemption, customarily and regularly exercise discretion and independent

26 judgment in performing those duties, and earn a monthly salary equivalent to no less than

27 two times the state minimum wage for full-time employment." (Labor Code §SIS(e)).

28 Acting on the authority vested in it by the Legislature, the Industrial Welfare Commission

OPPOSITION TO MOTION TO DISMISS

- 15 -

CASE NO. 07-2050 SC

Case3:07-cv-02050-SC Document35 Filed08/31/07 Page16 of 18

1 issued Wage Order 7-2001. This Wage Order exempts "managers" or "executive

2 employees~~ from overtime pay. As noted by Judge Fischer of the Northern District

3 Court~ "an executive employee is one whose duties involve management of the

4 enterprise; who regularly supervises two or more employees; who has the authority to

5 hire or fire other employees or to make meaningful recommendations as to hiring, firing,

6 advancement and promotion; who regularly exercises managerial discretion, and who is

7 primarily engaged in exempt duties, as defined by federal regulations." (Sepulveda v.

8 Wal-Mart Stores, Inc. (2006) 237 F.R.D. 229, 241, citing Cal. Code of Regs. Tit. 8,

9 11070, subd. 3 (A)(I)). Whether someone who has been classified as an "executive

10 employee" or manager is actually an "executive employee" (or manager) and thus truly

11 exempt from overtime pay is obviously a question of fact, not law. Each of the factors

12 identified by Judge Fischer must be considered before that determination can be

13 definitively made. Clearly, a wide array of facts, supported by evidence, must

14 necessarily be weighed when the question of whether someone has been properly

15 classified as an "executive employee" is entertained.

16

When the Miller Plaintiffs were told they were exempt from overtime pay because

17 salaried workers are not entitled to overtime, this was a misrepresentation of California

18 law. When Miguel Cruz and other members of his putative class were classified as

19 managers, and then treated as managers, this was not a misrepresentation of law. It was

20 not a misrepresentation of law because it is entirely true that managers in California are

21 indeed exempt from overtime pay. Instead~ it was a misrepresentation offact. Managers

22 may be ineligible to earn overtime pay by law, but when an employer merely classifies

23 someone as a manager and then employs them to perform mostly non-managerial

24 tasks, a misrepresentation of the fact of the employee's status has occurred, which in

25 tum results in a violation of the law when the employee works more than eight hours in a

26 day and is not compensated at the requisite overtime rate of pay. That the Defendant

27 intended to circumvent wage and hour laws, particularly the law mandating

28 payment of overtime, renders this misrepresentation of fact a fraudulent act.

OPPOSITION TO MOTION TO DISMISS

- 16 -

CASE NO. 07-2050 SC

Case3:07-cv-02050-SC Document35 Filed08/31/07 Page17 of 18

1

The Miller Plaintiffs were told they were exempt from overtime pay even though

2 they were rank and file employees. The reason given for their exemption from overtime

3 was that salaried workers are not paid overtime. The Plaintiffs in the case at bar were

4 never told they were exempt from overtime simply because they were salaried. Instead

5 they were classified as managers, who are by law exempt from overtime. The Miller case

6 and the instant case are clearly distinguishable. Again, the Miller case turns on a

7 misrepresentation of the law- that representation being that workers who are paid a

8 salary are not eligible to be paid overtime wages. Our Plaintiffs' case turns on a

9 misrepresentation of fact-that fact being that they were overtime-exempt managers. A

10 motion to dismiss a fraud cause of action may be proper when misrepresentations of law

11 form the basis of the allegation of fraud. This is the conclusion of Miller. A motion to

12 dismiss a fraud cause of action is not proper when the misrepresentation alleged is one of

13 fact. Since the Plaintiffs' fraud claim is premised on a misrepresentation of fact, not law,

14 Miller and its progeny do not apply and the Defendant's Motion to dismiss pursuit to

15 Millers' rationale cannot be granted.

16

III. CONCLUSION

1 7

Plaintiffs have more than satisfied the requirements of the Federal Rules, and

18 applicable common law authority. Defendant's Motion should be denied. As the Courts

19 have held time and time again, the purpose behind the heightened pleading requirements

20 is to give defendants enough information so that they are able to effectively respond to

21 the Complaint. The very detailed Complaint in this matter certainly does so.

22

Additionally, Defendants reliance on Miller v. Yokohama to demonstrate that

23 representations of law cannot form the basis of fraud is misplaced. Plaintiffs have

24 alleged not a misrepresentation of law, but of fact, hence Miller can form no legal

25 foundation for dismissal of Plaintiff s Fraud Cause of Action.

26

In the event, however, that the Court is not satisfied that the Plaintiffs efforts to

27 amend their Complaint, Plaintiffs respectfully request leave to amend the Complaint and

28 direction by the Court of what more is required of them.

OPPOSITION TO MOTION TO DISMISS

- 17 -

CASE NO. 07-2050 SC

Case3:07-cv-02050-SC Document35 Filed08/31/07 Page18 of 18

1 2 Dated: 31 August 2007 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
OPPOSITION TO MOTION TO DISMISS

EDGAR LAW FIRM By:

- 18 -

CASE NO. 07-2050 SC

 
 Case3:07-cv-02050-SC Document34 Filed08/31/07 Page1 of 2

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
RELATED CASE ORDER
A Motion for Administrative Relief to Consider Whether Cases Should be Related or a Sua Sponte Judicial Referral for Purpose of Determining Relationship (Civil L.R. 3-12) has been filed. The time for filing an opposition or statement of support has passed. As the judge assigned to the earliest filed case below that bears my initials, I find that the more recently filed case(s) that I have initialed below are related to the case assigned to me, and such case(s) shall be reassigned to me. Any cases listed below that are not related to the case assigned to me are referred to the judge assigned to the next-earliest filed case for a related case determination.

C 07-02050 SC

Cruz et al v. Dollar Tree Stores, Inc.

C 07-04012 PJH Runnings v. Dollar Tree Stores, Inc.

I find that the above case is related to the case assigned to me. SC

ORDER

Counsel are instructed that all future filings in any reassigned case are to bear the initials of the newly assigned judge immediately after the case number. Any case management conference in any reassigned case will be rescheduled by the Court. The parties shall adjust the dates for the conference, disclosures and report required by FRCivP 16 and 26 accordingly. Unless otherwise ordered, any dates for hearing noticed motions are vacated and must be renoticed by the moving party before the newly assigned judge; any deadlines set by the ADR Local Rules remain in effect; and any deadlines established in a case management order continue to govern, except dates for appearance in court, which will be rescheduled by the newly assigned judge.

Dated: August 30, 2007

Judge Samuel Conti

-1-

Case3:07-cv-02050-SC Document34 Filed08/31/07 Page2 of 2

CERTIFICATE OF SERVICE
I certify that on the date stated below, I lodged a copy of this order with each judicial officer and I mailed a copy to each counsel of record or pro se party in the cases listed above.
Richard W. Wieking, Clerk

DATED: August 31, 2007

By: T. De Martini Deputy Clerk

Copies to: Courtroom Deputies Case Systems Administrators Counsel of Record
Entered into Assignment Program:

(date)

-2-

 
 Case3:07-cv-02050-SC Document38 Filed09/18/07 Page1 of 11

United States District Court
For the Northern District of California

1

2

3

4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6

MIGUEL A. CRUZ, and JOHN D. HANSEN,) Case No. 07-2050 SC

7 individually and on behalf of all )

others similarly situated,

)

8

) ORDER GRANTING

Plaintiffs,

) DEFENDANT'S MOTION TO

9

) DISMISS THE SEVENTH

v.

) CAUSE OF ACTION IN

10

) PLAINTIFFS' FIRST

DOLLAR TREE STORES, INC.,

) AMENDED COMPLAINT

11

)

Defendant.

)

12

)

13

14 I. INTRODUCTION

15

This matter comes before the Court on Defendant's Motion to

16 Dismiss the Seventh Cause of Action of Plaintiffs' First Amended

17 Complaint. Docket No. 25.

18

On April 11, 2007, Plaintiffs Miguel Cruz, John Hansen, and

19 all others similarly situated ("Plaintiffs") filed a complaint

20 ("Complaint") against Defendant Dollar Tree Stores, Inc.

21 ("Defendant" or "Dollar Tree"). See Compl., Docket No. 1. On May

22 9, 2007, Defendant filed a motion to dismiss the Seventh Cause of

23 Action of the Complaint. Mot. to Dismiss, Docket No. 5. Count

24 VII alleged fraud by Defendant. Mot. to Dismiss ¶ 76. Defendant

25 argued that Plaintiff had failed to satisfy Federal Rule of Civil

26 Procedure 9(b), which requires a heightened standard of pleading

27 for claims involving fraud. See Fed. R. Civ. P. 9(b).

28

On June 29, 2007, this Court issued an order granting

Case3:07-cv-02050-SC Document38 Filed09/18/07 Page2 of 11

United States District Court
For the Northern District of California

1 Defendant's motion to dismiss Count VII of the Complaint. Docket

2 No. 19. The dismissal was without prejudice and Plaintiffs

3 subsequently filed an amended complaint ("First Amended

4 Complaint"). Docket No. 23.

5

Defendant then filed this motion to dismiss Count VII of the

6 First Amended Complaint. Docket No. 25, Mot. to Dismiss.1

7 Plaintiffs opposed the motion and Defendant filed a reply. See

8 Docket Nos. 35, 36. After reviewing the parties' submissions, the

9 Court GRANTS the motion and DISMISSES the Seventh Cause of Action

10 with prejudice.

11

12 II. BACKGROUND

13

According to the First Amended Complaint, Plaintiffs are

14 former Store Managers at Dollar Tree who allege that they were

15 improperly classified as exempt and therefore denied wages for

16 overtime. First Am. Compl. ¶¶ 2-4. The Seventh Cause of Action

17 alleges that Defendant committed fraud by "inducing Plaintiffs and

18 members of their Class to work in excess of eight (8) hours per

19 day and forty (40) hours per week without expectation on their

20 part that they were entitled to receive compensation for overtime

21 worked." Id. at ¶ 83.

22

23

24

25

26

1All further references to a motion to dismiss are to the

motion to dismiss the Seventh Cause of Action of the First Amended 27 Complaint.

28

2

Case3:07-cv-02050-SC Document38 Filed09/18/07 Page3 of 11

United States District Court
For the Northern District of California

1 III. LEGAL STANDARD

2

Federal Rule of Civil Procedure 12(b)(6) states that a motion

3 to dismiss may be granted if the plaintiff fails "to state a claim

4 upon which relief can be granted." Fed. R. Civ. P. 12(b)(6).

5 When evaluating a motion to dismiss, the court accepts the facts

6 as stated by the nonmoving party and draws all inferences in its

7 favor. Everest & Jennings, Inc. v. Am. Motorists Ins. Co., 23

8 F.3d 226, 228 (9th Cir. 1994). In addition, courts must assume

9 that all general allegations "embrace whatever specific facts

10 might be necessary to support them." Peloza v. Capistrano Unified

11 Sch. Dist., 37 F.3d 517, 521 (9th Cir. 1994). At the pleading

12 stage, the plaintiff "need only show that the facts alleged, if

13 proved, would confer standing upon him." Warren v. Fox Family

14 Worldwide, Inc., 328 F.3d 1136, 1140 (9th Cir. 2003).

15

Although "a complaint generally must satisfy only the minimal

16 notice pleading requirements," Porter v. Jones, 319 F.3d 483, 494

17 (9th Cir. 2003), where a complaint includes allegations of fraud,

18 Federal Rule of Civil Procedure 9(b) requires greater specificity,

19 including an account of the "time, place, and specific content of

20 the false representations as well as the identities of the parties

21 to the misrepresentations." Edwards v. Marin Park, Inc., 356 F.3d

22 1058, 1066 (9th Cir. 2004) (citation omitted). "To comply with

23 Rule 9(b), allegations of fraud must be specific enough to give

24 defendants notice of the particular misconduct which is alleged to

25 constitute the fraud charged so that they can defend against the

26 charge and not just deny that they have done anything wrong."

27 Bly-Magee v. California, 236 F.3d 1014, 1019 (9th Cir. 2001)

28

3

Case3:07-cv-02050-SC Document38 Filed09/18/07 Page4 of 11

United States District Court
For the Northern District of California

1 (citation and quotation omitted).

2

3 IV. DISCUSSION

4

Defendant has moved for dismissal of the Seventh Cause of

5 Action based on two distinct theories. The Court addresses each

6 in turn.

7

A. Failure To State A Claim

8

Defendant argues that Plaintiffs' Seventh Cause of Action for

9 fraud and deceit should be dismissed pursuant to Rule 12(b)(6) for

10 failure to state a claim. Plaintiffs' Seventh Cause of Action

11 alleges that Defendant fraudulently "induc[ed] Plaintiffs . . .

12 to work [overtime] . . . without any expectation . . . that they

13 were entitled to receive compensation for overtime worked."

14 First. Am. Compl. ¶ 83. Defendant states that, as a matter of

15 law, it cannot be liable in fraud for misrepresenting California's

16 wage and hour laws to its employees. Mot. to Dismiss at 4.

17

"'[A]s a general rule, . . . fraud cannot be predicated upon

18 misrepresentations as to matters of law.'" Miller v. Yokohama

19 Tire Corp., 358 F.3d 616, 621 (9th Cir. 2004) (citing Am. Jur. 2d

20 of Fraud and Deceit § 97 (2001)). Plaintiffs do not dispute this

21 but instead argue that the misstatement in the present case is one

22 of fact, not law. Opp'n at 15.

23

In Miller, the plaintiff sued his employer for failure to pay

24 overtime wages. Miller, 358 F.3d at 618. In a scenario similar

25 to the case at hand, the plaintiff in Miller alleged that his

26 employer misrepresented to him and other employees their

27 entitlement to overtime wages. Id. These misrepresentations and

28

4

Case3:07-cv-02050-SC Document38 Filed09/18/07 Page5 of 11

United States District Court
For the Northern District of California

1 the failure to pay overtime wages, according to the plaintiff,

2 "constituted a fraudulent scheme." Id. at 619.

3

On appeal, the Ninth Circuit held that the plaintiff's claims

4 for fraud were properly dismissed. Id. at 622. The Ninth Circuit

5 stated that the employer's statements regarding the plaintiff's

6 entitlement to overtime wages were misrepresentations of law. Id.

7 at 620. Because "fraud cannot be predicated upon

8 misrepresentations of law," id. at 621 (internal quotations

9 omitted), the fraud claims were dismissed. Id. at 622.

10

Plaintiffs in the case at bar argue that Miller is

11 distinguishable on two grounds. First, they state that the claims

12 in Miller were based on federal RICO violations while the fraud

13 claims in the present case are based on fraud under California

14 state law. Opp'n at 14-15. Miller, however, dealt specifically

15 with the issue of whether the plaintiff had satisfied the pleading

16 requirements for a fraud claim. Miller, 358 F.3d at 620.

17 Although the underlying claims in Miller alleged RICO violations,

18 the "threshold issue . . . [was whether] an employer's

19 misrepresentations of the law to an employee constitute[d]

20 actionable fraud." Id.

21

In addition, although the plaintiff's claim in Miller arose

22 under federal law, the Ninth Circuit explicitly stated that "we

23 must look to common law to determine whether Miller has stated a

24 claim of actionable fraud." Id. at 621. Plaintiffs in the

25 present case have presented no argument that common law fraud is

26 distinguishable from fraud under California state law. Thus,

27

28

5

Case3:07-cv-02050-SC Document38 Filed09/18/07 Page6 of 11

United States District Court
For the Northern District of California

1 their attempt to distinguish on this ground fails.2

2

Plaintiffs also seek to distinguish Miller by arguing that

3 the statements made by Defendant were misrepresentations of fact,

4 not law. Opp'n at 15. Notwithstanding the similarities between

5 the employer's statements in Miller and Dollar Tree's statements

6 in the present case, Plaintiffs argue that Defendant's statements

7 regarding entitlement to overtime pay were in fact

8 misrepresentations of fact because "it was the fact [that the

9 plaintiffs] were truly managers [that] was misrepresented." Id.

10 at 15 (emphasis deleted). In attempting to clarify this argument,

11 Plaintiffs state: "when an employer merely classifies someone as

12 a manager and then employs them to perform mostly non-managerial

13 tasks, a misrepresentation of the fact of the employee's status

14 has occurred . . . ." Id. at 16.

15

This attempt to distinguish Miller is not persuasive.

16 Plaintiffs fail to recognize that the central issue in the Seventh

17 Cause of Action revolves around the classification of the

18 employment status of Plaintiffs. This question is a question of

19 law. As the court in Miller stated, "[t]he [defendants']

20 statements [regarding entitlement to overtime wages] did not

21 include express or implied misrepresentations of fact." Miller,

22 358 F.3d at 621. It is difficult, if not impossible, to see how

23 the statements in the present case are materially different from

24 those in Miller.

25
2Although there are four recognized exceptions to the general 26 rule that misrepresentations of law may not give rise to a claim of
fraud, Miller, 358 F.3d at 621, none applies to the facts of this 27 case and Plaintiffs have not argued otherwise.

28

6

Case3:07-cv-02050-SC Document38 Filed09/18/07 Page7 of 11

United States District Court
For the Northern District of California

1

That the disputed statements in the present case are of law

2 and not fact is further supported by recent district court

3 decisions. See, e.g., Alba v. Papa John's USA, No. CV 05-7487,

4 2007 WL 953849, at *6 (C.D. Cal. Feb. 7, 2007) (stating

5 "Plaintiffs set forth several common questions of law . . . [the

6 first of which is] whether Defendants' policies mischaracterized

7 store managers as exempt employees under California law . . .");

8 see also Whiteway v. FedEx Kinko's Office & Print Servs., No. C

9 05-2320, 2006 WL 2642528, at *4 (N.D. Cal. Sept. 14, 2006)

10 (stating "Plaintiff identifies the following common questions of

11 law . . . [including] whether defendant Kinko's violated IWC Wage

12 Orders . . . by failing to pay overtime compensation to Store

13 Managers who worked in excess of forty hours per week and/or eight

14 hours per day . . ."). Given the similarity of the claims in

15 Miller, Alba and Whiteway with the claim in the present case, this

16 Court finds that the question of whether a certain class of

17 employees is exempt is a question of law. Therefore, Defendant's

18 Rule 12(b)(6) motion to dismiss the Seventh Cause of Action for

19 failure to state a claim is granted.

20

Defendant also mentions, briefly, that Count VII replicates

21 Count I of the First Amended Complaint, and should therefore be

22 dismissed. See Mot. to Dismiss at 3 (stating "[c]ount VII fails

23 because it replicates Count I . . .).3 Count I alleges that the

24
3 This argument is not discussed or explored beyond the above 25 cited language. In addition, this argument is made in the middle
of Defendant's Rule 12(b)(6) argument even though Rule 12(f) is the 26 relevant rule for redundant claims. Federal Rule of Civil
Procedure 12(f) states, in the relevant part: "Upon motion made by 27 a party . . . or upon the court's own initiative . . . the court

28

7

Case3:07-cv-02050-SC Document38 Filed09/18/07 Page8 of 11

United States District Court
For the Northern District of California

1 Defendant failed to pay overtime wages in violation of the

2 California Labor Code. First Am. Compl. ¶¶ 25-32. Count VII, as

3 noted above, alleges that Defendant engaged in fraud or deceit

4 against the entire class. Id. at ¶ 76.

5

Although the two claims are similar and allege the same end

6 result of withholding money that was owed to Plaintiffs, the

7 claims differ in several ways and therefore are not redundant.

8 Count I alleges that Defendant mis-classified Plaintiffs as

9 managers in order to avoid paying overtime and other benefits.

10 Id. at ¶ 28. Count VII, on the other hand, alleges that Defendant

11 used fraud to "convince its managers of their exempt status." Id.

12 at ¶ 82. Count I alleges a violation of the California Labor Code

13 for failing to pay overtime and other benefits while Count VII

14 alleges fraud in inducing Plaintiffs to accept their employment

15 status. In addition, Count VII, unlike Count I, seeks punitive

16 damages. Thus, while similar, the two counts are distinct and are

17 not redundant.

18

B. Failure to Plead With Sufficient Particularity

19

As Plaintiffs' Seventh Cause of Action is for fraud and

20 deceit, this claim must meet the heightened pleading requirements

21 of Rule 9(b). See Edwards, 356 F.3d at 1066. This requires

22 Plaintiffs to give a specific account of the fraud so that Dollar

23 Tree can defend against the charge with more than a blanket

24 denial.

25

It should be noted that the differences between Plaintiffs'

26 may order stricken from any pleading any . . . redundant . . .
27 matter." Fed. R. Civ. P. 12(f).

28

8

Case3:07-cv-02050-SC Document38 Filed09/18/07 Page9 of 11

United States District Court
For the Northern District of California

1 original Complaint and First Amended Complaint are slight. One

2 change to the First Amended Complaint is the addition of specific

3 names of some of the employees of Dollar Tree who allegedly knew

4 of and helped create the employment practices which form the basis

5 of this lawsuit. See First Am. Compl. ¶ 78. The specific

6 identity of those who allegedly perpetrated the fraud is clearly

7 important in satisfying the heightened pleading requirement of

8 Rule 9(b). Inserting a list of names of upper-level Dollar Tree

9 Store employees, however, without further explanation of how these

10 people were complicit in the alleged fraud, does little to "give

11 defendants notice of the particular misconduct . . . so that they

12 can defend against the charge and not just deny that they have

13 done anything wrong." Semegen v. Weidner, 780 F.2d 727, 731 (9th

14 Cir. 1985). Although the addition of the names of the employees

15 does add specificity to the Seventh Cause of Action in the First

16 Amended Complaint, Plaintiffs have failed to draw any tighter

17 connection between these employees and the purported fraud than

18 was alleged in original Complaint.

19

The other noticeable difference between the original

20 Complaint and the First Amended Complaint involves a section,

21 added to the First Amended Complaint, discussing the role of

22 paychecks and wage statements in perpetuating the fraud. See

23 First Am. Compl. ¶¶ 81, 82. Specifically, Plaintiffs allege that

24 the pay checks and wage statements were inaccurate and were

25 designed to "reinforce [Plaintiffs'] incorrect understanding of

26 their status as exempt managers." Id. at ¶ 81. In addition,

27 Plaintiffs allege that Defendant knew that the pay checks and wage

28

9

Case3:07-cv-02050-SC Document38 Filed09/18/07 Page10 of 11

United States District Court
For the Northern District of California

1 statements "were fraudulent representations that the managers were

2 exempt." Id. at ¶ 82. Finally, Plaintiffs allege that these pay

3 checks and wage statements "are also evidence of the broader

4 fraudulent scheme by Defendant to convince its managers of their

5 exempt status." Id.

6

Plaintiffs have still not satisfied the Rule 9(b) standard.

7 Alleging that every pay check and wage statement is evidence of

8 fraud is too conclusory and too vague to allow Defendant to

9 constructively respond. Accordingly, Plaintiffs have pleaded the

10 Seventh Cause of Action in their First Amended Complaint with

11 insufficient specificity. Therefore, Defendant's Motion to

12 Dismiss the Seventh Cause of Action based on Rule 9(b) is granted.

13

C. Whether Leave to Amend Should Be Granted

14

"In the absence of any apparent or declared reason - such as

15 undue delay . . ., repeated failure to cure deficiencies . . . -

16 the leave [to amend] sought should . . . be freely given."

17 Eminence Capital LCC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th

18 Cir. 2003) (per curiam). When, however, "a district court has

19 already granted a plaintiff leave to amend, its discretion in

20 deciding subsequent motions to amend is particularly broad."

21 Chodos v. West Publ'g Co., 292 F.3d 992, 1003 (9th Cir. 2002)

22 (internal quotations and citations omitted). In the present case,

23 Plaintiffs have already been afforded one opportunity to amend

24 their Complaint on the very same issue which is now before the

25 Court for the second time and it is not clear how Plaintiffs would

26 benefit from another opportunity.

27

In addition, because Plaintiffs' Seventh Cause of Action for

28

10

Case3:07-cv-02050-SC Document38 Filed09/18/07 Page11 of 11

United States District Court
For the Northern District of California

1 fraud is predicated on a misrepresentation of law, it cannot be

2 saved by an additional amendment. See Eminence Capital LCC, 316

3 F.3d at 1052 (holding that dismissal without leave to amend is

4 improper unless the complaint could not be saved by any

5 amendment). Because another opportunity to amend would likely be

6 futile and result in undue delay, Count VII is dismissed without

7 leave to amend. See Foman v. Davis, 371 U.S. 178, 182 (1962)

8 (holding that district courts, in deciding whether to grant leave

9 to amend, should look to several factors, including undue delay,

10 "repeated failure to cure deficiencies by amendments previously

11 allowed, . . . [or] futility of amendment . . .").

12

13 V. CONCLUSION

14

For the reasons discussed herein, the Court GRANTS

15 Defendant's Motion and DISMISSES Plaintiffs' Seventh Cause of

16 Action with prejudice.

17

18

19

20

21

IT IS SO ORDERED.

22

23

Dated: September 18, 2007

24

UNITED STATES DISTRICT JUDGE

25

26

27

28

11

 
 Case3:07-cv-02050-SC Document48 Filed01/19/08 Page1 of 28

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23
24 25 26 27 28
KAUFF MCCLAIN & MCGUIRE LLP
ONE POST STREET SUITE 2600
5AN FRANCISCO, CA 94104 fELEPHONE (415) 421-3111

MAUREEN E. MCCLAIN (State Bar No. 062050) Email: mcclain@kmm.com ALEX HERNAEZ (State Bar No. 201441) Email: hernaez@kmm.com KAUFF MCCLAIN & MCGUIRE LLP One Post Street, Suite 2600 San Francisco, California 94104 Tel: (415) 421-3111 Fax: (415)421-0938
Attorneys for Defendant DOLLAR TREE STORES, INC.
BETH HIRSCH BERMAN (VA Bar No. 28091) Email: bberman@williamsmullen.com WILLIAMS MULLEN Dominion Tower, Suite 1700, 999 Waterside Drive Norfolk, Virginia 23510 Telephone: (757) 629-0604 Facsimile: (757) 629-0660
Pro Hac Vice Attorneys for Defendant DOLLAR TREE STORES, INC.

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

MIGUEL A. CRUZ, and JOHN D. HANSEN, individually and on behalf of all others similarly situated,
Plaintiffs,
v.
DOLLAR TREE STORES, INC., Defendant.
ROBERT RUNNINGS individually, and on behalf of all others similarly situated,
Plaintiff, v. DOLLAR TREE STORES, INC.,
Defendant.

CASE NO. C 07 2050 SC

DEFENDANT DOLLAR TREE
STORES, INC.'S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT AS TO JOHN HANSEN; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

JUDGE: COMPLAINTS FILED:
TRIAL DATES:

Hon. Samuel Conti April 11, 2007 July 6,2007 No dates set.

CASE NO. C 07 04012 SC

DEFENDANT DOLLAR TREE STORES, INC.'S MOTION FOR SUMMARY JUDGMENT AS TO JOHN HANSEN; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

CASE NOS. C 07-2050 SC &
C 07-04012 SC

Case3:07-cv-02050-SC Document48 Filed01/19/08 Page2 of 28

1 2 3 4
5
6 7 8
9
10 11
12 13 14
15 16
17 18 19
20 21
22
23 24
25 26 27 28
KAUFF MCCLAIN & MCGUIRE LLP
ONE POST STREET SUITE 2600
5AN FRANCISCO, CA 94104 fELEPHONE (415) 421·3111

TABLE OF CONTENTS

Page

I.

RELIEF REQUESTED ..........................................................................................3

II. INTRODUCTION...................................................................................................3

III. UNDISPUTED FACTS ..........................................................................................4

IV. ARGUMENT..........................................................................................................7

A. Summary Judgment Standard ....................................................................7

B. Analysis Of The Evidence In Light Of California's Executive Exemption Test. ..........................................................................................7

1. Hansen's Duties And Responsibilities Involved The Management Of The Enterprise In Which He Was Employed ......... 8

2. Hansen Customarily And Regularly Directed The Duties Of Two Or More Employees .................................................................9

3. Hansen Had The Authority To Hire And Fire Employees And His Recommendations Were Given Particular Weight With Regard To Promotions...................................................................10

4. Hansen Customarily And Regularly Exercised Discretion And Independent Judgment. .................................................................11

5. Hansen Spent More Than Half His Time Performing Exempt Work ..............................................................................................14

6. Hansen's Monthly Salary Was Two Times The California Minimum Wage..............................................................................18

C. Hansen Was Exempt Under The Fair Labor Standards Act ..................... 18

D. Hansen Was Properly Treated As An Exempt Employee, Thus The
Remaining Counts Must Be Denied ..........................................................21

1. Exempt Employees Are Not Entitled To Itemized Wage Statements.....................................................................................21

2. Exempt Employees Are Not Entitled To Meal Periods Or Rest Periods...........................................................................................21

3. Unfair Competition And Unfair Business Practices Claims Fail When The Underlying, Claimed Labor Law Violations Fail. ...........21

4. The Unjust Enrichment Claim Fails When The Underlying, Claimed Labor Law Violations Fail. ................................................22

5. Hansen Is Not Entitled Unpaid Wages Due at Termination ...........22

E. Hansen Has No Basis For Equitable Relief ..............................................22

V. CONCLUSION ....................................................................................................23

- i-
DEFENDANT DOLLAR TREE STORES, INC-'S MOTION FOR SUMMARY JUDGMENT AS TO JOHN HANSEN; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

CASE NOS. C 07-2050 SC &
C 07-04012 SC

Case3:07-cv-02050-SC Document48 Filed01/19/08 Page3 of 28

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KAUFF MCCLAIN & MCGUIRE LLP
ONE POST STREET SUITE 2600
5AN FRANCISCO, CA 94104 TELEPHONE (415) 421-3111

TABLE OF AUTHORITIES

FEDERAL CASES

Page Page(s)

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ...................................................................................................7

Baldwin v. Trailer Inns, Inc., 266 F.3rd 1104 (9th Cir. 2001) .....................................................................10, 17,20

Cooper v. Spring Haven, 1995 U.S. Dist. LEXIS 16918. *7 (D. Kan. 1995) ......................................................17

Donovan v. Burger King, 672 F.2d 221 (1st Cir. 1982) .....................................................................................17

Donovan v. Burger King, 675 F.2d 516 (2nd Cir. 1982)....................................................................................17

Home v. Crown Central Petroleum, Inc., 775 F.Supp. 189 (D. SC 1991) ...........................................................................17, 20

Murray v. Stuckey's, 939 F.2d 614 (8th Cir. 1991).....................................................................................20

Palazzolo-Robinson v. Sharis Management Corporation, 68 F.Supp. 1186 0IVDWash.1999) ..........................................................................17

Rebel Oil Co, Inc. v. Atlantic Richfield Co., 51 F.3d 1421 (9th Cir. 1995).......................................................................................7

Whiteway v. FedEx Kinko's Office and Print Servs., Inc., 2007 WL 2408872, at *3 (N.D.Cal., Aug. 21, 2007) ..................................................21

STATE CASES

Alcala v. Western Ag Enters., 182 Cal.App. 3d 546 (1986).......................................................................................12

Conley v. Pacific Gas & Electric Co., 131 Cal.App.4th 260 (2005) ........................................................................................7

Harris v. Investor's Business Daily, Inc., 138 Cal.App.4th 28 (2006) ........................................................................................22

Lauriedale Assocs., Ltd. v. Wilson, 7 Cal.App.4th 1439 (1992) ........................................................................................22

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DEFENDANT DOLLAR TREE STORES, INC.'S MOTION FOR SUMMARY JUDGMENT AS TO JOHN HANSEN; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

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TABLE OF AUTHORITIES (continued)

Nordquist v. McGraw-Hili Broadcasting Co, 32 Cal.App.4th 555 (1995) ..................................................................................11, 12

Ramirez v. Yosemite Water Company 20 Cal.4th 785 (1999) ...............................................................................................14
STATE STATUES

Cal. Labor Code §§ 201 (a) and 203 ...............................................................................21

Cal. Lab. Code § 226(a) .................................................................................................21

Cal. Lab. Code § 515(a) .............................................................................................7, 21

Cal. Lab. Code § 510 .......................................................................................................7

Cal. Lab. Code § 515 .......................................................................................................7 STATE REGULATIONS

8 Cal. Code Regs. 11070 § 1(A)(1)(e) ...........................................................................15

8 Cal. Code Regs. § 11 070(1 )(A) ...............................................................................8, 18

8 Cal. Code Regs. § 11070(1)(A)(1)(e) ..........................................................................16

8 Cal. Code Regs. § 11 070(1)(A)(1)(e) ..........................................................................14

8 Cal. Code Regs. § 11 070(2)(N) ..................................................................................11 FEDERAL RULES

Federal Rules of Civil Procedure Rule 56(b) ....................................................................3 FEDERAL REGULATIONS

29 C.F.R. § 541 ..............................................................................................................18

29 C.F.R. § 541.100(a) (2007) .......................................................................................19

29 C.F.R. § 541.1 00(a)(2) ..............................................................................................19

29 C.F.R. § 541.102 .................................................................................................14, 20

29 C.F.R. §541.108(c) ...................................................................................................17

29 CFR § 541.207 ..........................................................................................................12

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DEFENDANT'S NOTICE OF DEPOSITION OF PLAINTIFF ROBERT RUNNINGS

C 07-04012 PJH

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TABLE OF AUTHORITIES

(continued)

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Page

3 29 C_F.R § 541.700(a) (2007) .......................................................................................19

4 29 C.F.R § 541.700(b) (2007) .......................................................................................19

5

OTHER AUTHORITIES

6 DLSE 2002 Operations and Procedures Manual § 51.5.1 .............................................12 7 Wage Order 7-2001 § 1(A).............................................................................................21 8

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DEFENDANT'S NOTICE OF DEPOSITION OF PLAINTIFF ROBERT RUNNINGS

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TO PLAINTIFFS AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that as soon as counsel may be heard in Courtroom 1 of the above-entitled Court, located at 450 Golden Gate Ave., 17th Floor, San Francisco, CA, Defendant, Dollar Tree Stores, Inc. (''Dollar Tree") will, and hereby does, request that the Court summarily adjudicate in Dollar Tree's favor as to Plaintiff, John D. Hansen ("Hansen"), each and every count of the Complaint. Specifically, this Court should find that Hansen was properly classified as an exempt employee under both the California Labor Code (First Cause of Action) and the Fair Labor Standards Act (Tenth Cause of Action), since he spent the majority of his time performing managerial exempt duties in order to carry out the primary purpose of his position which was the management of his Dollar Tree store. Thus, the First and Tenth Causes of Action should be adjudicated in Dollar Tree's favor. The Second Cause of Action, Dollar Tree's alleged failure to pay unpaid wages at the time of termination, is premised exclusively upon Hansen's allegations that he was a non-exempt employee entitled to overtime compensation. Since Hansen does not allege he was entitled to any other additional compensation and since he was not entitled to overtime compensation, the Second Cause of Action should be adjudicated in Dollar Tree's favor. Hansen's Third Cause of Action seeks relief for Dollar Tree's alleged failure to provide Hansen with itemized wage statements and his Fourth and Fifth Causes seek relief for Dollar Tree's alleged failure to provide him with meal and rest breaks, respectively. Each of those causes is supported exclusively by the premise that Hansen should have been classified as a non-exempt employee. As an exempt employee, Hansen was not entitled to a wage statement identifying the number of hours he worked, and he was not entitled to be provided mandatory meal and rest breaks. Accordingly, the Third, Fourth and Fifth Causes of Action should be adjudicated in favor of Dollar Tree.

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DEFENDANT DOLLAR TREE STORES, INC.'S MOTION FOR SUMMARY JUDGMENT AS TO JOHN HANSEN; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

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Case3:07-cv-02050-SC Document48 Filed01/19/08 Page7 of 28

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The Sixth Cause of Action seeks relief for unfair competition and unfair

2 business practices. This claim is also derived from Hansen's erroneous assertion that

3 he was a non-exempt employee and can survive only if supported by a violation of some

4 other law. Since Hansen was properly classified as exempt, and Dollar Tree did not

5 violate any of the other statutes as alleged by Hansen, this claim must fail too and

6 should be adjudicated in favor of Dollar Tree. Hansen's Eighth Cause of Action asserts

7 a claim for unjust enrichment stemming from Dollar Tree's alleged failure to provide

8 Hansen with overtime compensation. This claim fails because Hansen was an exempt

9 employee and not entitled to additional compensation. Thus, Dollar Tree was not

10 unjustly enriched, and the Court should find in favor of Dollar Tree as to the Eight Cause

11 of Action. Hansen's Ninth Cause of Action seeks injunctive and other equitable relief.

12 Because Dollar Tree has not violated any of the statutes as alleged by Hansen, there is 13 no basis upon which to grant equitable relief and this claim should be denied. 1

'14

This motion is based upon this Notice of Motion and Motion for Summary

15 Judgment, the Memorandum Of Points And Authorities in support thereof, the

16 Declarations of Carlos Hernandez, Paula Brady, Beth Hirsch Berman and Charlotta

17 Jacobson-Allen as well as all records and proceedings in this action, and on such other

18 and further matters as may be presented to the Court in connection with the hearing on

19 this Motion for Summary Judgment. This motion is being filed and served pursuant to

20 Fed. R. Civ. P. 56.

21 DATED: 22 23 24

January 19, 2008

Respectfully submitted, KAUFF MCCLAIN & MCGUIRE LLP By:------~A=L/=SE/~X~H=E=R~N~A~E=Z~-----

25

Attorneys for Defendant

DOLLAR TREE STORES, INC.

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1 The Seventh Cause of Action, Fraud and Deceit, was previously dismissed by the Court.
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DEFENDANT DOLLAR TREE STORES, INC.'S MOTION FOR SUMMARY JUDGMENT AS TO JOHN HANSEN; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

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MEMORANDUM OF POINTS AND AUTHORITIES

2 I.

RELIEF REQUESTED.

3

Pursuant to Rule 56(b) of the Federal Rules of Civil Procedure, Defendant

4 Dollar Tree Stores, Inc. ("Dollar Tree") respectfully requests that the Court enter an

5 Order granting summary judgment in Defendant's favor of Plaintiff John D. Hansen's

6 ("Hansen") claims for relief which arises under the California Labor Code, IWC Wage

7 Orders, the Fair Labor Standards Act, California Business and Professions Code and the

8 common law.

9 II. INTRODUCTION.

10

Dollar Tree owns and operates retail variety discount stores nationwide,

11 selling a broad assortment of goods, including but not limited to, housewares and

12 household cleaners; foods and beverages; party and seasonal goods; toys; hardware;

13 pet supplies; stationery; automotive products; and health and beauty aids, all at the

14 $1.00 price point.

15

Hansen was employed by Dollar Tree as a Store Manager from July of

16 2006 until his employment ended on or about November 16,2007. While employed as a

17 Store Manager, Hansen was the highest level employee at his store and the only

18 employee to be paid on an exempt salaried basis.

19

On April 10, 2007, Hansen filed a class action complaint on behalf of

20 current and former California Dollar Tree Store Managers alleging that under both

21 California and Federal law, they were misclassified as exempt employees and therefore

22 improperly denied overtime pay. Hansen asserts that as a result of the alleged improper

23 classification, Dollar Tree also violated California law by improperly denying them rest

24 and meal breaks; failing to provide them with accurate itemized wage statements; failing

25 to pay them all wages due them at the time their employment terminated; and that Dollar

26 Tree's actions unjustly enriched it and constituted unfair competition and unfair business

27 practices.

28
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DEFENDANT DOLLAR TREE STORES, INC.'S MOTION FOR SUMMARY JUDGMENT AS TO JOHN HANSEN; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

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Despite the numerous causes of action, Hansen has one basic theory of unlawful conduct upon which all his claims for recovery rest - that Dollar Tree improperly classified its Store Managers in California, including him, as exempt. It is that erroneous premise upon which Hansen relies to support his different causes of action and the various forms of relief he seeks.
Dollar Tree denies each of Hansen's allegations and asserts that its Store Managers, and Hansen particularly, were properly classified as exempt. Under California law, employees are exempt from overtime compensation if they: (a) spend the majority of their time performing work that either requires the exercise of independent judgment and discretion or is directly and closely related thereto; (b) supervise two or more full-time employees or the equivalent thereof; and (c) are compensated at a rate of at least two times California's minimum wage. As the undisputed facts demonstrate, Hansen met all these criteria and was properly classified as an exempt employee. III. UNDISPUTED FACTS
1. Dollar Tree owns and operates approximately 220 retail stores throughout California. (Declaration of Paula Brady, 113 ("Brady Decl.").)
2. Each store is run by a Store Manager who is responsible for all that
happens within his or her store. (Declaration of Carlos Hernandez, 11 3 ("Hernandez Dec!.").)
3. Hansen was hired by Dollar Tree as an Assistant Manager in
January of 2006. In July of 2006, he was promoted to the Store Manager position at store no. 1868 in Rohnert Park, California. In September of 2007, Hansen was transferred to Dollar Tree store no. 2262 in Healdsburg, California. Hansen's employment with Dollar Tree ended on or about November 16,2007. (Brady Decl., 114.)
4. As a Store Manager, Hansen was assisted by between two and four
Assistant Managers at anyone time. The number of Assistant Managers in Hansen's store fluctuated as a result of employee terminations, both voluntary and involuntary. A

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DEFENDANT DOLLAR TREE STORES, INC.'S MOTION FOR SUMMARY JUDGMENT AS TO JOHN HANSEN; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

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true and correct copy of the Deposition of John D. Hansen ("Hansen Dep.,") is attached as Exhibit A to the Declaration of Beth Hirsch Berman, 20:14-24.
5. Consistent with Dollar Tree policy and practice, Hansen was
supervised by a District Manager. During most of Hansen's employment with Dollar Tree, his District Manager was Richard Tellstrom. A true and correct copy of the Deposition of Richard Tellstrom ("Tellstrom Dep.") is attached as Exhibit B to the Declaration of Beth Hirsch Berman, 22:1-8. Each District Manager oversees approximately ten to twelve stores while Hansen's District Manager, Tellstrom oversaw 12 stores. (Tellstrom Dep., 17:3-5.) District Managers do not run the stores or direct the work of the store employees. That is left to the Store Managers. (Tellstrom Dep., 21 :1218.)
6. The selling area of Dollar Tree's California stores vary in size from approximately 3,200 square feet to 21,000 square feet. Because of the disparity in the store size, Dollar Tree separates its stores into four different categories - small, large, super and race track. (Hernandez Decl., 1{4.)
7. At Dollar Tree, the merchandise mix and merchandise displays vary from store to store because Store Managers are expected to drive their stores' sales. (Hernandez Dec!., 1{1{6 and 10(3); Tellstrom Dep., 66:16-67:2.)
8. As the Store Manager, Hansen was responsible for all the ordering in his store. Orders for merchandise were submitted on a weekly basis and included one order of all the frozen and dairy food carried by the store and another order of merchandise that, in Hansen's judgment, would drive store sales. (Hansen Dep., 94:596:22.) Hansen was also responsible for ordering all his store's supplies. (Brady Dec!., 1{10.)
9. Hansen was responsible for the design of various merchandise displays and the placement and amount of shelf space devoted to each item of merchandise. (Hansen Dep., 52:19-55:10.)

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DEFENDANT DOLLAR TREE STORES, INC.'S MOTION FOR SUMMARY JUDGMENT AS TO JOHN HANSEN; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

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10. As a Store Manager, Hansen was in charge of a multitude of

discretionary decisions that needed to be made each day such as: safeguarding

company assets; scheduling employees; hiring, firing, and disciplining employees;

dealing with customer or product problems; teaching employees how properly to perform

their duties and supervising their performance; reviewing, analyzing and preparing

reports; recommending and/or determining employee raises and promotions; planning

the daily work duties; assigning tasks on a daily basis to employees; supervising the

completion of tasks; supervising cashier performance; performing cashier audits;

ensuring that the store was properly merchandised; approving checks and returns;

enforcing Dollar Tree policies and procedures; performing and overseeing cashier

reconciliations; reviewing and correcting payroll data; setting merchandising goals;

reconciling invoices; training employees; maintaining the store property and ensuring

proper security; creating and maintaining a workplace that was compliant with federal

and state OSHA, local fire codes and, ensuring compliance with various other local, state

and federal laws, regulations and ordinances. (Hansen Dep., 234:4-13; 245:23-246:6;

27:5-12; 244:21-245:4; 245:23-246:1; 28:5-12; 246:2-6; 246:7-20; 52:19-53:12; 33:16-

34:24; 57:8-60:24; 54:5-55:10; 228:8-17; 269:18-25; 230:19-231:18.)

11. During his tenure as a Store Manager, California's minimum wage

ranged from $6.75 to $7.50. Hansen's base salary was $48,000 annually -- more than

three times the minimum wage. Additionally, as a Store Manager, Hansen was eligible

to receive bonuses tied to the sales performance of his store. During the fifteen months

that Hansen was a Store Manager for Dollar Tree, he received $12,019.62 in bonuses.

(Brady Decl., ~ 4.)

12. Hansen also regularly and customarily supervised far more than the

equivalent of two full-time employees. The total number of hours worked by the

employees in stores nos. 1868 and 2262 under Hansen's direct supervision ranged from

a low of approximately 272 per week to a high of approximately 689 per week.

(Declaration of Charlotta Jacobson-Allen, ~ 13 ("Jacobson-Allen Decl."). -6-

DEFENDANT DOLLAR TREE STORES, INC.'S MOTION FOR SUMMARY JUDGMENT AS TO JOHN HANSEN; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

CASE NOS. C 07-2050 SC &
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IV. ARGUMENT
A. Summary Judgment Standard.

Summary judgment is appropriate when the pleadings, affidavits and other

material present no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Rebel Oil Co, Inc. v. Atlantic Richfield Co., 51 F.3d 1421, 1432 (9th Cir. 1995). "By its very terms, this standard provides that the mere existence

of some alleged factual dispute between the parties will not defeat an otherwise properly

supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Uberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original). As set forth herein, the undisputed facts establish that, as a Store Manager, Hansen's employment met all of the criteria necessary to qualify him as an executive, exempt from California and Federal overtime requirements and exempt from California's rest and meal break and itemized wage statement requirements.

B. Analysis Of The Evidence In Light Of California's Executive
Exemption Test. Under California's Labor Code sections 510 (computation of overtime pay) and 515 (exemptions from payment of overtime), an employee is entitled to overtime pay for his work for an employer unless the employer demonstrates the employee's work is subject to an exemption from payment of overtime. Conley v. Pacific Gas & Electric Co., 131 Cal.App.4th 260, 266 (2005). Labor Code section 515 provides that California's

Industrial Welfare Commission (IWC) may establish exemptions from the requirement for overtime compensation for various types of employees. Lab. Code § 515(a).
The IWC established the exemptions by means of wage orders. The IWC's wage orders are compiled in the California Code of Regulations, Title 8.

Regarding the executive employee exemption, section 1(A)(1) of the wage order states:

A person employed in an executive capacity means any employee:

(a) Whose duties and responsibilities involve the management of the enterprise in which he/she is employed or of a customarily recognized department or subdivision
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DEFENDANT DOLLAR TREE STORES, INC.'S MOTION FOR SUMMARY JUDGMENT AS TO JOHN HANSEN; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

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Case3:07-cv-02050-SC Document48 Filed01/19/08 Page13 of 28

1

thereof; and

2

(b) Who customarily and regularly directs the work of

two or more other employees herein; and

3

(c) Who has the authority to hire or fire other

4

employees or whose suggestions and recommendations as

to the hiring or firing and as to the advancement and

5

promotion or any other change of status of other employees

will be given particular weight; and

6

(d) Who customarily and regularly exercises discretion

7

and independent judgment; and

8

(e) Who is primarily engaged in duties which meet the

test of the exemption. The activities constituting exempt work

9

and non-exempt work shall be construed in the same manner

as such items are construed in the following regulations

10

under the Fair Labor Standards Act effective as of the date of

this order: 29 C.F.R. Sections 541.102, 541.104-111, and

11

541.115-116.7 Exempt work shall include, for example, all

work that is directly and closely related to exempt work and

12

work which is properly viewed as a means for carrying out

exempt functions. The work actually performed by the

13

employee during the course of the work week must, first and

foremost, be examined and the amount of time the employee

14

spends on such work, together with the employer's realistic

expectations and the realistic requirements of the job, shall

15

be considered in determining whether the employee satisfies

this requirement.

16

(f) Such an employee must also earn a monthly salary

17

equivalent to no less than two (2) times the state minimum

wage for full-time employment. Full-time employment is

18

defined in Labor Code Section 515(c) as 40 hours per week.

19 8 Cal. Code Regs. § 11070(1 )(A) ("Wage Order").

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1. Hansen's Duties And Responsibilities Involved The
Management Of The Enterprise In Which He Was Employed. As set forth above, to qualify as an exempt executive employee, Hansen's duties and responsibilities must have included the management of the enterprise in which he was employed. As a Store Manager, Hansen was in sole charge of his store, with complete responsibility for its operations. (Hansen Dep., 222:18-223:11.) "In the vast majority of cases there is no difficulty in determining whether an individual is in charge of a customarily recognized department or subdivision of a department. For example, it is clear that where an enterprise comprises more than one establishment, the

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DEFENDANT DOLLAR TREE STORES, INC.'S MOTION FOR SUMMARY JUDGMENT AS TO JOHN HANSEN; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

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employee in charge of each establishment may be considered in charge of a subdivision of the enterprise." 29 CFR 541.104(b) (2001). In each store where Hansen was the Store Manager, he was the highest ranking (and only exempt) employee in the store. During Hansen's tenure, Hansen was responsible for all aspects of store no. 1868. For example, he was responsible for the following: supervising associates (Hansen Dep.,

227:8-17); overseeing daily activities; opening and closing the store; taking care of money (Hansen Dep., 228:21-230:6); ensuring customer and associate safety (Hansen

Dep., 230:15-232:17); processing Worker's Compensation claims (Id.); protecting all company assets (Hansen Dep., 233:13-25); maintaining proper sales, banking, inventory, accounting, productivity and time records (Hansen Dep., 234:4-13); knowing all the facts and figures about the store sales, the number of employee hours, and the deposits (Hansen Dep., 244:12-18); improving employee productivity and morale (Hansen Dep., 244:15-20); auditing payroll and time records (Hansen Dep., 244:21245:4); staffing the store and recruiting and training new employees (Hansen Dep., 245:17-22); scheduling and assigning all work (Hansen Dep., 245:23-246:1); evaluating, counseling, disciplining and discharging employees (Hansen Dep., 246:2-6); maintaining production reports to evaluate job performance of sales associates (Hansen Dep., 246:7-

16); providing leadership to associates; communicating company policies to associates (Hansen Dep., 246:21-24); ensuring appropriate cleanliness and appearance of the store (Hansen Dep., 250:9-14); providing customer service; ensuring compliance with applicable laws (Hansen Dep., 255:6-17) and approving payroll records (Hansen Dep.,

269: 18-25).

2. Hansen Customarily And Regularly Directed The Duties Of Two
Or More Employees. The Wage Order also requires that an executive employee customarily and regularly direct the work of two or more employees. The stores that Hansen managed were usually staffed with three Assistant Managers (although the number fluctuated between two and four depending on turnover and staffing needs), and 13-14 regular

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hourly Associates (that number also fluctuated and went as high as 32 during the
Christmas season). (Hansen Dep., 46:23-47:9; Jacobson-Allen Decl., 11 13.) Hansen

was the highest ranking and only exempt employee in both stores he managed.
(Hernandez DecL, 11 3.) Each week, Hansen created the work schedule for the

employees in his store. Hansen adjusted the employee's schedule throughout the week

to meet the needs of the store. (Hansen Dep., 59:8-18.) Hansen also directed the

duties of his employees on a daily basis and ensured the assigned tasks were

accomplished. (Hansen Dep., 52:19-53:2; 434:11-435:20.) Such responsibilities meet

the supervisory criteria even if Hansen was not present in the store when each of his

employees worked. Baldwin v. Trailer Inns, Inc., 266 F.3d 1104, 1117 (9th Cir. 2001).

3. Hansen Had The Authority To Hire And Fire Employees And His
Recommendations Were Given Particular Weight With Regard To Promotions.
The third prong of the exemption test requires that Hansen had either the

authority to hire or fire employees or that his suggestions and recommendations as to

hiring, firing and promoting and advancement of employees was given particular weight.

In fact, Hansen had the authority to interview, hire, evaluate, discipline, and fire

employees in his store. (Hansen Dep., 27:5-12.) Hansen decided when his store

needed more Sales Associates. (Hansen Dep., 47:10-13.) Hansen hired at least fifteen

employees while at store no. 1868. (Hansen Dep., 176:7-184:2.) Hansen was solely in

charge of screening employment applications for his store and selecting who to interview

to work in the store. (Hansen Dep., 164:1-12.) He would personally interview the

applicants he selected. (Hansen Dep., 164:23-165:4.) Hansen would interview about 5-

6 applicants before finding the right person for the job and making them an offer to work

at Dollar Tree. (Hansen Dep., 165:14-166:16.) Each interview took about twenty

minutes. (Hansen Dep., 165:5-7.) Hansen made employment offers to Sales

Associates without supervision or oversight. (Hansen Dep., 164:23-166:4; 165:8-13.)

Hansen also made decisions and/or recommendations about promotions.

(Hansen Dep., 18:20-20:9.) Hansen's recommendations were given considerable

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1 weight. (Id.) On other occasions, Hansen even selected and hired and promoted

2 management level employees without meaningful input from his District Manager.

3 (Hansen Dep., 303:20-304:16.) According to Hansen, his District Manager was

4 supposed to interview Assistant Managers before they were put on the payroll; however,

5 often Hansen was the only person to evaluate an Assistant Manager candidate before

6 the person was hired. (Hansen Dep., 212:1-22:2; 303:20-304:16.)

7

In addition, Hansen had the authority to and did terminate employees.

8 (Hansen Dep., 518:3-6.) Usually, Hansen consulted with his District Manager and Dollar

9 Tree's Human Resources Department for compliance with federal and state regulations

10 prior to terminating an employee but no independent investigation was conducted by

11 either. (Hansen Dep., 23:3-24:6.) Based on the forgoing, Hansen clearly exercised the

12 authority required by the third prong of the exemption test.

13

4. Hansen Customarily And Regularly Exercised Discretion And

Independent Judgment. 14
The California executive exemption requires that the employee be

15 employed in work that is "primarily" managerial and which requires the exercise of
16 discretion and independent judgment. Id. "Primarily" is defined as "more than one-half
17 the employee's work time." 8 Cal. Code Regs. § 11 070(2)(N). The Wage Order does
18 not define "discretion and independent judgment." The California Court of Appeals in
19

Nordquist v. McGraw-Hili Broadcasting Co., however, defined "discretion and 20
independent judgment" as: 21

"Discretion and independent judgment" ... involves the

22

comparison of possible courses of conduct, and acting after

considering various possibilities. It implies that the employee

23

has the power to make an independent choice free from

immediate supervision and with respect to matters of

24

significance. The decisions must be at a level appropriate to

administrative work. Matters of consequence are those of

25

substantial significance to the policies or general operations

of the business of the employer. 26

27

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DEFENDANT DOLLAR TREE STORES, INC.'S MOTION FOR SUMMARY JUDGMENT AS TO JOHN HANSEN; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

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Nordquist v. McGraw-Hili Broadcasting Co, 32 Cal.App.4th 555, 573 (1995). In the
above quoted passage, Nordquist adopts the definition found in 29 CFR § 541.207.2
The FLSA interpretation defining "discretion and independent judgment" applies equally to both the "administrative" and "executive" exemption.3
Hansen made numerous decisions on a daily basis utilizing discretion and independent judgment. Operating a Dollar Tree store requires that many decisions be made on a daily basis, with those decisions varying based on the particular circumstances of the store. (Hernandez Decl., ~ 4.) Hansen was the highest ranking executive in the stores in which he worked as a Store Manager and the employee charged with making those decisions. Although each store was overseen by a District Manager, the District Manager was incapable of making the daily decisions required to run the store. (Tellstrom Dep., 21:12-18.) Hansen alleges he worked in store no. 1868 an average of 49 hours a week,4 while his District Manager, for the most part, visited the store for 4 hours twice a month. (Hansen Dep., 65:5-66:1.) Hansen was ultimately the person in charge of all store operations and his managerial decisions impacted the profitability of his store. (Hansen Dep., 57:8-60:24.)
Hansen was responsible for increasing store sales through his own entrepreneurial talents and management skills. (Hansen Dep., 33:6-34:21; 57:8-60:24.) Unlike many other retail chains, Dollar Tree views its Store Managers as individual entrepreneurs who know their customers and best know how to serve their needs. As a result of that philosophy, while at store no. 1868, Hansen ordered 19.62% of all store merchandise and he was responsible for ordering 100% of the frozen and refrigerated foods. (Jacobson-Allen Decl., ~ 14; Hansen Dep., 92:13-93:4.)

2 Courts may look to the federal regulations in interpreting California wage laws. See, e.g., Alcala v. Western Ag Enters., 182 Ca!'App.3d 546,550 (1986) (FLSA regulations "may serve as persuasive guidance for interpreting California law"). 3 "For enforcement purposes, therefore, DLSE will ... rely upon the language of 29 CFR § 541.207 to define the term "discretion and independent judgment" in each of the exempt classifications." DLSE 2002 Operations and Procedures Manual § 51.5.1. 4 (Hansen Dep., 81:7-21). A review of those records indicate he averaged 49 hours a week.
Jacobson-Allen Dec!., 1110.

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DEFENDANT DOLLAR TREE STORES, INC.'S MOTION FOR SUMMARY JUDGMENT AS TO JOHN HANSEN; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

CASE NOS. C 07-2050 SC &
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Hansen was in charge of identifying sales opportunities, creating

merchandise displays and developing and executing a plan to sell the merchandise.

(Hernandez Decl.,,-r 6.) These tasks required independent judgment and discretion.

(Hansen Dep., 221 :18-222:11; 247:24-248:16.) Thus, merchandise displays vary from

store to store as determined by the skill of the individual Store Managers and the

customers preferences. (Hernandez Decl., ,-r 5.) Dollar Tree uses a merchandise

planner for its stores, which it intends the Store Manager to use as a guideline.

However, the merchandise planner applies only to that merchandise which the

customers expect to see each week, and offered Hansen great discretion in ordering

and displaying the merchandise which he determined suitable for his store and

customers. (Hernandez Decl., ,-r 8.) As intended, Hansen used the merchandise

planner as a guideline, taking into consideration the merchandise and fixtures he had

available and using his knowledge of what sold well in his particular store. (Hansen

Dep., 53:4-19.) Therefore, decisions about which merchandise to put on the sales floor

and how to display that merchandise were left to Hansen's discretion. (Hansen Dep.,

54:5-55:5.) Hansen also determined which products sold well together and how to

increase sales of high margin items. (Hansen Dep., 32:9-33:5.) In addition, Hansen

took responsibility for organizing the merchandise in the backroom. (Hansen Dep.,

321 :20-322:22.)

Hansen admitted he used his discretion and independent judgment to

make management decisions calculated to ensure store success. Hansen: (1) hired the

Associates he wanted (Hansen Dep., 47:10-13); (2) arranged merchandise in the store

in a manner he believed to be attractive to customers (Hansen Dep., 54:5-17); (3)

ordered store merchandise (Hansen Dep., 92:13-96:24); (4) counseled and terminated

employees, (Hansen Dep., 246:2-6); (5) was responsible for driving sales (Hansen Dep.,

32:20-33:18; 33:25-34:21; 57:8-60:24); (6) made recommendations regarding

promotions (Hansen Dep., 18:20-20:9); (7) made decisions about scheduling employees,

prioritizing tasks, and assigning tasks to employees daily (Hansen Dep., 245:23-246:1);

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DEFENDANT DOLLAR TREE STORES, INC.'S MOTION FOR SUMMARY JUDGMENT AS TO JOHN HANSEN; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

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and (8) evaluated his employees (Hansen Dep., 246:2-6). Hansen even had the ability to deviate from company polices. (Hansen Dep., 44:13-46:8.)
Hansen had substantially more responsibilities than any other employee in his store. Hansen's Assistant Managers did not hire, order merchandise, or prepare employee work schedules. (Hansen Dep., 245:17-246:1.) When he delegated duties to his Assistant Managers, he remained ultimately responsible for ensuring the duties were carried out timely and correctly. (Hernandez Decl., ~ 7.)
5. Hansen Spent More Than Half His Time Performing Exempt
Work. The Wage Order specifically incorporates the definition of "managerial
work" set forth in the regulations promulgated under the FLSA.5 8 Cal. Code Regs. § 11070(1)(A)(1)(e). In particular, the Wage Order incorporates 29 C.F.R. § 541.102, which provides some examples of exempt work, including:
interviewing, selecting and training employees, setting and adjusting pay rates and work hours, directing work, keeping production records for subordinates, evaluating employee's efficiency and productivity, handling employee complaints, disciplining employees, planning work, determining techniques to be used, distributing work, deciding on types of materials, supplies, machinery and tools to be used or merchandise to be bought, stocked, and sold, controlling the flow and distribution of merchandise and supplies, and providing for employee safety. 29 C.F.R. § 541.102 (2001). Moreover, a person may be simultaneously engaged in hands on, non-exempt work while exercising managerial duties. One example would be a manager training an employee by stocking shelves with the employee. California law mandates a quantitative review of an employee's duties. Ramirez v. Yosemite Water Company, 20 Cal.4th 785, 797 (1999). The work actually performed by the employee during the course of the work week must be examined and the amount of time the employee spent on such work, together with the employer's

5 Note that the FLSA regulations were changed in 2004. The Wage Order has not been amended to reference the new regulations, thus the pre-2004 regulations will be relied upon in
this section.
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DEFENDANT DOLLAR TREE STORES, INC.'S MOTION FOR SUMMARY JUDGMENT AS TO JOHN HANSEN; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

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realistic expectations and the realistic requirements of the job, are to be considered in

determining whether the employee satisfies the requirement that more than half his time

has been spent performing tasks that qualify for the exemption. 8 Cal. Code Regs.

11070§1(A)(1)(e).

The evidence shows that Hansen meets the test for exempt status.

Hansen spent the majority of his time either performing tasks that were directly exempt

(direct management of staff, hiring and firing, counseling and disciplining subordinates,

and the like) or were "closely related" to his management tasks.

In addition to the foregoing duties set forth at length in Section III.B.1.

above, Hansen performed the following exempt duties:

Educated his employees about job duties and performance, company

policies, safety rules, and governmental requirements (Hansen Dep., 246:21-24; 230:15-

232:17; 255:6-13); prepared workers' compensation reports (Hansen Dep., 232:5-8);

analyzed store reports (Hansen Dep., 257:5-258:25); approved and managed payroll

(Hansen Dep., 244:21-245:4); safeguarded store assets, managed cash adjustments,

and voids at the registers, and prepared management reports (Hansen Dep., 97:12-

98: 13); addressed employee grievances and was responsible for employee morale

(Hansen Dep., 244:15-20).

All these duties required Hansen's independent discretion and judgment

and consumed more than fifty percent (50%) of his work time. (Hernandez Decl., ~ 6.)

Hansen will likely argue that he spent substantial time stocking or running

cash registers; indeed, they are the only non-exempt tasks he identified. (Hansen Dep.,

255:21-256:12.) Dollar Tree does not dispute that a good manager may spend some

part of their day helping the store employees by performing such tasks as relieving

cashiers from the register to take a rest break; however, this and similar work does not

take up fifty percent (50%) of a competent Store Manager's time. It did not take up fifty

percent of Hansen's time. The records show that Hansen spent far less than half of his

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DEFENDANT DOLLAR TREE STORES, INC.'S MOTION FOR SUMMARY JUDGMENT AS TO JOHN HANSEN; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

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Dollar Tree is able to ascertain the amount of time each store employee

spent on a cash register by reviewing certain cashier reports. (Brady Decl., ~ 7.) These

reports show that, as a Store Manager, Hansen spent an average of only 12% of his

time in the store cashiering. (Jacobson-Allen Decl., ~ 12.) During the period oftime

when Hansen was employed as a non-exempt Assistant Store Manager and was

required to perform fewer exempt duties, he spent 25% of his time cashiering.

(Jacobson-Allen Decl., ~ 12.)

While Dollar Tree does not maintain records that identify the amount of

time an employee spends stocking and Hansen stated he was not able to estimate the

amount of time he spent stocking merchandise, Hansen admits he spent more time

cashiering than stocking because he was better at customer service than at stocking.

(Hansen Dep., 266:22-267:12.)

Given Hansen's admission that he spent more time cashiering than

stocking, coupled with the fact that he spent only 12% of his time cashiering, Hansen

cannot have performed non-exempt tasks more than 25% of the time he worked. The

numerous exempt functions Hansen performed account for the remainder of his time in

the store.

Additionally, even the time Hansen spent cashiering and stocking does not

automatically qualify as non-exempt. The Wage Order states that "[e]xempt work shall

include all work that is directly and closely related to exempt work and work which is

properly viewed as a means for carrying out exempt functions." 8 Cal. Code Regs. §

11070(1)(A)(1)(e). This requires that activities, which when viewed in the abstract seem

non-exempt, be considered exempt if they are undertaken with the purpose of

effectuating exempt functions of a manager's job. Thus, to the extent Hansen was

cashiering or stocking to train employees or oversee their work, such work was directly

and closely related to supervising and managing employees and is exempt. To the

extent Hansen's stocking was performed as an integral part of his creating merchandise

displays, training or engaging in asset protection, it also would be exempt. "[I]n other

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establishments it is not uncommon to leave the actual distribution of materials and supplies in the hands of the supervisor. In such cases it is exempt work since it is directly and closely related to the managerial responsibility of maintaining the flow of materials...." 29 C.F.R. §541.108(c); See Palazzolo-Robinson v. Sharis Management Corporation, 68 F.Supp. 1186, 1190 01VD Wash. 1999) (plaintiff never stopped being the manager, even when she was on the floor of the restaurant pouring coffee); "[O]ne can still be 'managing' ... even while physically doing something else." Donovan v. Burger King, 672 F.2d 221, 226 (1st Cir. 1982) (Burger King I); "[A]n employee can manage while performing other work." Id.; "It is possible for an employee to perform managerial duties simultaneously with nonexempt work." Cooper v. Spring Haven, 1995 U.S. Dist. LEXIS 16918. *7 (D. Kan. 1995) (plaintiff oversaw the work of other dietary employees while at the same time cooking, serving meals, etc.); "[M]uch of the oversight of the operation can be carried out simultaneously with the performance of non-exempt work." Donovan v. BurgerKing, 675 F.2d 516, 521 (2nd Cir. 1982) (Burger King II); Horne v. Crown Central Petroleum, Inc., 775 F.Supp. 189, 190 (D. SC 1991) (convenience store manager performed management duties "simultaneously" with assisting store clerks in waiting on customers); "Management function cannot readily and economically be separated from nonexempt tasks." Baldwin v. Trailer Inns, Inc., 266 F.3rd at 1114; "One can still be managing if one is in charge, even while physically doing something else." Id.
Hansen admits that he was evaluating, motivating, training and directing employees while he was on the sales floor stocking merchandise. (Hansen Dep., 188: 12-195:25.) In addition, Hansen admits all of his time spent at the register was not necessarily non-exempt time. (Hansen Dep., 256:4-12.)
Accordingly, Hansen's own testimony bolstered by Dollar Tree's records, establishes that the majority of Hansen's time was spent performing work that is considered exempt under California (and Federal) law.

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DEFENDANT DOLLAR TREE STORES, INC.'S MOTION FOR SUMMARY JUDGMENT AS TO JOHN HANSEN; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

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Case3:07-cv-02050-SC Document48 Filed01/19/08 Page23 of 28

1

6. Hansen's Monthly Salary Was Two Times The California

Minimum Wage.

2

3

The Wage Order requires that an executive employee "earn a monthly

4 salary equivalent to no less than two times the state minimum wage for full-time

5 employment." 8 Cal. Code Regs. § 11070(1)(A). Hansen's salary as a Store Manager

6 was $4,000 a month. (Hansen Dep., 105:1.) This is well above twice the minimum

7 wage ($2,600). IWC Minimum Wage Order (MW-2007). In addition to his base salary,

8 Hansen routinely received monthly bonuses for meeting sales goals. (Hansen Dep.,

9 105:5-7.)

10

As demonstrated by the foregoing, Hansen's employment by Dollar Tree

11 met every criteria necessary to qualify him for the executive exemption under California

12 law. Accordingly, Hansen was properly treated as an exempt employee.

13

C. Hansen Was Exempt Under The Fair Labor Standards Act.

14

Section 13(a)(1) of the Fair Labor Standards Act ("FLSA") provides a

15 complete minimum wage and overtime pay exemption for any employee employed in a

16 bona fide executive, administrative, or professional capacity, as those terms are defined

17 in 29 C.F.R. § 541. An employee may qualify for exemption an if all of the pertinent tests

18 relating to duties and salary are met. Section 541.100 states that an employee is

19 employed in a "bona fide executive capacity" for purposes of the exemption if the

20 employee:

21

(1) [is] Compensated on a salary basis at a rate of not less

than $455 per week ... , exclusive of board, lodging or other

22

facilities;

23

(2) Whose primary duty is management of the enterprise in

which the employee is employed or of a customarily

24

recognized department or subdivision thereof;

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(3) Who customarily and regularly directs the work of two or more other employees; and

(4) Who has the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees are given particular weight.

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DEFENDANT DOLLAR TREE STORES, INC.'S MOTION FOR SUMMARY JUDGMENT AS TO JOHN HANSEN; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

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29 C.F.R. § 541.100(a) (2007).
Under 29 C.F.R. § 541.1 00(a)(2), an exempt executive's "primary duty"
must be management of the enterprise or of a customarily recognized department or
subdivision of the enterprise. Primary duty is defined in § 541.700(a) as the "principal,
main, major, or most important duty that the employee performs." Factors to consider in
determining an employee's primary duty include "the relative importance of the exempt
duties as compared with other types of duties; the amount of time spent performing
exempt work; the employee's relative freedom from direct supervision; and the
relationship between the employee's salary and the wages paid to other employees for
the kind of nonexempt work performed by the employee." 29 C.F.R. § 541.700(a)
(2007). The primary duty determination is based on all of the facts and circumstances in
each individual case with the major emphasis on the character of the employee's job as
a whole. Further, although the amount of time spent on exempt work can act as a guide,
time alone is not the sole test. Generally, employees who spend more than 50 percent
of their time performing exempt work will satisfy the primary duty requirement. See 29
C.F.R. § 541.700(b) (2007). Section 541.102 contains a non-exhaustive list illustrating
the type of activities constituting "management," including:
activities such as interviewing, selecting, and training of employees; setting and adjusting their rates of pay and hours of work; directing the work of employees; maintaining production or sales records for use in supervision or control; appraising employees' productivity and efficiency for the purpose of recommending promotions or other changes in status; handling employee complaints and grievances; disciplining employees; planning the work; determining the techniques to be used; apportioning the work among the employees; determining the type of materials, supplies, machinery, equipment or tools to be used or merchandise to be bought, stocked and sold; controlling the flow and distribution of materials or merchandise and supplies; providing for the safety and security of the employees or the property; planning and controlling the budget; and monitoring or implementing legal compliance measures.
29 C.F.R. § 541.102 (2007).

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DEFENDANT DOLLAR TREE STORES, INC.'S MOTION FOR SUMMARY JUDGMENT AS TO JOHN HANSEN; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

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As shown above, Hansen qualifies for the executive exemption under California law. California's standard for the executive exemption is stricter than the FLSA. Specifically, California requires that the employee spend more than 50% of his time performing exempt functions. The FLSA requires only that the employee's "primary duty" is an exempt function. 29 C.F.R. § 541.700(b) states that U[t]ime alone, however, is not the sole test, and nothing in this section requires that exempt employees spend more than 50 percent of their time performing exempt work. Employees who do not spend more than 50 percent of their time performing exempt duties may nonetheless meet the primary duty requirement if the other factors support such a conclusion."
Thus, the FLSA defines "primary duty" using a qualitative standard while California's definition of "primary duty" is quantitative. Because Hansen meets the quantitative standard, Hansen also meets the FLSA's qualitative requirements. See 29 C. F. R. § 541.700(b) (2007) ("The amount of time spent performing exempt work can be a useful guide in determining whether exempt work is the primary duty of an employee. Thus, employees who spend more than 50 percent of their time performing exempt work will generally satisfy the primary duty requirement").
Moreover, summary judgment is not appropriate for Hansen's FLSA claim based on the FLSA's qualitative standard. The most important duties Hansen performed were the exempt management functions. As shown above, Hansen was responsible for the day-to-day operation and profitability of the stores in which he worked. "[T]he person in charge of a store has management as his primary duty, even though he spends the majority of the time on non-exempt work." Murray v. Stuckey's, 939 F.2d 614, 618 (8th Cir. 1991); Home v. Crown Central Petroleum, Inc., 775 F.Supp. at 190 (convenience store manager performed management duties "simultaneously" with assisting store clerks in waiting on customers); "Management function cannot readily and economically be separated from nonexempt tasks." Baldwin v. Trailer Inns, Inc., 266 F.3rd at 1114; "One can still be managing if one is in charge, even while physically doing something

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DEFENDANT DOLLAR TREE STORES, INC.'S MOTION FOR SUMMARY JUDGMENT AS TO JOHN HANSEN; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

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else." Id. Since Hansen readily acknowledged he was responsible for managing his

stores, (Hansen Dep., 222:18-223:11), Hansen was exempt under the FLSA.

D. Hansen Was Properly Treated As An Exempt Employee, Thus The
Remaining Counts Must Be Denied.
1. Exempt Employees Are Not Entitled To Itemized Wage
Statements. The California Labor Code requires employers to furnish itemized wage

statements to all their employees "except for any employee ... who is exempt ... under

subdivision (a) of Section 515 or any applicable order of the Industrial Welfare

Commission ...." Cal. Labor Code § 226(a). Since Hansen has asserted no basis to support his claim that Dollar Tree improperly failed to provide him with itemized wage

statements other than his assertion that his position was non-exempt and since

Hansen's position as a Store Manager was properly classified as exempt, this claim,

must be denied.

2. Exempt Employees Are Not Entitled To Meal Periods Or Rest
Periods. California law leaves exempt employees without overtime compensation

and all "other benefits, such as meal and rest breaks." Whiteway v. FedEx Kinko's

Office and Print Servs., Inc., No. C 05-2320 SBA, 2007 WL 2408872, at *3 (N.D.Cal., Aug. 21, 2007); see also Wage Order 7-2001 § 1(A) ("Provisions of Section 3 through 12

[including meal breaks and rest breaks] shall not apply to persons employed in

administrative, executive, or professional capacities."). It follows that under California law Hansen's claims for meal and rest break violations must be denied because Hansen

was an exempt employee.

3. Unfair Competition And Unfair Business Practices Claims Fail
When The Underlying. Claimed Labor Law Violations Fail. Hansen bases his unfair competition and unfair business practices claims

on his underlying claims for overtime, meal and rest breaks, and itemized wage

statements. However, Hansen's status as an exempt employee moots each of his

underlying claims of state labor law violations. Because unfair competition and unfair -21-

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business practices claims "borrow[] violations of other laws [including the Labor Code] when committed pursuant to business activity," Harris v. Investor's Business Daily, Inc., 138 Cal.App.4th 28, 32-33 (2006), it follows that Hansen's unfair competition and unfair business practices claims fail due to the mooted underlying claims. Stated differently,

because Hansen, as an exempt employee, was not entitled to overtime compensation,

meal breaks, rest breaks or itemized wage statements, none of his claims remain to sustain an unfair competition and unfair business practices claim. Accordingly, this claim

must be denied.

4. The Unjust Enrichment Claim Fails When The Underlying,
Claimed Labor Law Violations Fail. Hansen bases his unjust enrichment claim on his underlying claims for overtime, meal and rest breaks, and itemized wage statements. "Unjust Enrichment" is not a theory of recovery, but an effect: the result of a failure to make restitution under circumstances where it is equitable to do so. Lauriedale Assocs., Ltd. v. Wilson, 7 Cal.App.4th 1439, 1448 (1992). However, Hansen's status as an exempt employee moots each of is underlying claims of state labor law violations. Because Hansen is an exempt employee, he is not entitled to overtime compensation, meal breaks, rest breaks

or itemized wage statements, and thus is owed no restitution. Accordingly, this claim

must be denied. 5. Hansen Is Not Entitled Unpaid Wages Due at Termination.
The California Labor Code requires employers to pay employees all wages due the employee. Cal. Labor Code §§ 201 (a) and 203. However, as Hansen was an exempt employee, he is not entitled to overtime compensation. Therefore, he was owed

no wages that were not paid at termination. Accordingly, this claim must be denied. E. Hansen Has No Basis For Equitable Relief. Hansen seeks an injunction and other equitable relief to stop Dollar Tree
from engaging in the alleged unlawful conduct, se forth in the other causes of action in his Complaint. Since all the other causes of action are due to be denied, there is no

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KAUFF MCCLAIN & MCGUIRE LLP
ONE POST STREET SUITE 2600
5AN FRANCISCO, CA 94104 TELEPHONE (415) 421-3111

basis on which to grant Hansen equitable relief and accordingly this claim should be denied. V. CONCLUSION
For all the foregoing reasons, the Court should find that Hansen was an exempt executive employee under California law and the FLSA; that he was not entitled to any overtime compensation, rest or meal breaks; was not owed any money and therefore not due any relief for unpaid wages; he has failed to establish that Dollar Tree engaged in unfair competition and unfair business practices; and he has failed to establish that Dollar Tree was in any way unjustly enriched. Dollar Tree, therefore, respectfully requests that judgment be entered in its favor as to all causes of action.

DATED: January 19, 2008

Respectfully submitted, KAUFF MCCLAIN & MCGUIRE LLP

By:

lSI

------~A7L=EX~H=E=R~N~A~E=Z~-----

Attorneys for Defendant DOLLAR TREE STORES, INC.

-23-
DEFENDANT DOLLAR TREE STORES, INC.'S MOTION FOR SUMMARY JUDGMENT AS TO JOHN HANSEN; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

CASE NOS. C 07-2050 SC & C 07-04012 SC

 
 Case3:07-cv-02050-SC Document61 Filed02/29/08 Page1 of 22

1 Donald S. Edgar, Esq. (SBN 139324) Jeremy R. Fietz, Esq. (SBN 200396)
2 Rex Grady, Esq. (SBN 232236) THE EDGAR LAW FIRM
3 408 College Avenue Santa Rosa, CA 95401
4 Telephone: (707) 545-3200 Facsimile: (707) 578-3040
5

6 Attorneys for Plaintiff, JOHN D. HANSEN
7

8
UNITED STATES DISTRICT COURT
9 NORTHERN DISTRICT OF CALIFORNIA
10

11

MIGUEL A CRUZ, and JOHN D. HANSEN,)

12 individually and on behalf of all others)

similarly situated,

)

13

)

Plaintiffs,

)

14

)

v.

)

15

)

)

16 DOLLAR TREE STORES, INC,

)

)

17

Defendant.

~

18

)

ROBERT RUNNINGS, individually, and on)

19 behalf of all others similarly situated,

)

)

20

Plaintiff,

)

)

21 v.

)

)

22

)

DOLLAR TREE STORES, INC.,

)

23

)

Defendant

)

24

)

)
25

Case No. C 07 2050 SC

PLAINTIFF JOHN D. HANSEN'S BRIEF IN OPPOSITION TO DEFENDANTS'
MOTION FOR SUMMARY JUDGMENT

Judge: Complaints Filed:
Trial Date:

Hon. Samuel Conti April 11, 2007 July 6, 2007 No dates set

26

27

28

Case3:07-cv-02050-SC Document61 Filed02/29/08 Page2 of 22

1 2 3 1. 4 II. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 III. 28

TABLE OF CONTENTS
INTRODUCTION ....................................................... 1 ARGUMENT ........................................................... 3 A. GENUINE DISPUTES OF FACT DO EXIST WITH REGARD TO
MATERIAL FACTS SUPPORTING DEFENDANT'S AFFIRMATIVE DEFENSE TO PLAINTIFF'S STATE LAW CAUSES OF ACTION ......... 3 1. The Issue At The Heart Of Defendant's Motion Is Whether
Plaintiff Spent More Than Fifty Percent Of His Work Time Performing Managerial Duties .................................. 3 2. Defendant's Alleged Undisputed Facts In Support OfIts Contention That Plaintiff Spent Most Of His Time Performing Managerial Duties Are Not Actually Facts And Thus Cannot Be Relied Upon In Placing This Matter Beyond Genuine Dispute .............. 5 a. The Hernandez Declaration Does Not Present Nor
Support Any Undisputed Fact ............................ 5 b. The Jacobsen-Allen Declaration Rests On Faulty And
Highly Disputable Premises And Thus Fails To Support Defendant's Assertion That A Material Factual Dispute Has Been Resolved In Defendant's Favor ................... 7 c. The Minimal Amount Of Time Necessary And Actually Expended On Managerial Duties Supports The Conclusion That A Genuine Dispute Remains Over How Much Time Plaintiff Actually Spent Performing Non-Managerial Duties ... 13 B. DEFENDANT HAS NOT MET ITS BURDEN WITH REGARD TO PLAINTIFF'S FLSA CAUSE OF ACTION ......................... 16 CONCLUSION . ....................................................... 18

PLAINTIFF'S OPP. TO MOTION FOR SUMMARY JUDGMENT

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1

TABLE OF AUTHORITIES

2

3

Statutory or Positive Authorities

4 8 California Code ofRegulations § 11 070(2)(N) ..................................... 4

5 29 Code ofFederal Regulations § 541.103 .................................... " 16-17

6

7

Common Law Authorities

8 Corning Glass Works v. Brennan (1974) 417 u.s. 188,94 S.Ct. 2223 ..................... 1

9 Cortez v. Purolator Air Filtration Products Co. (1998)

10

64 Cal.AppAth 882, 75 Cal.Rptr.2d 551 ................................ 1

11 ordquist v. McGraw-Hill Broadcasting Co., Inc. (1995)

12

32 Ca.AppAth 555,38 Cal.Rptr.2d 221 ................................ 1

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

PLAINTIfF'S OPP. TO MOTION FOR SUMMARY JUDGMENT

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1

Plaintiff JOHN D. HANSEN hereby opposes the Defendant DOLLAR TREE STORE'S

2 Motion For Summary Judgment.

3

I. INTRODUCTION

4

Ordinarily, when a Plaintiff alleges commission of a wrong against him, he bears the burden

5 ofproving the wrong actually occurred. There are, however, certain situations when the burden rests

6 on the shoulders of the alleged wrongdoer. When the Defendant is, as here, an employer who is

7 alleged not to have paid the Plaintiff overtime wages or abided by other legislatively established

8 minimum labor standards, the fundamental burden shifts. The Plaintiff-employee, ofcourse, retains

9 the burden of proving non-payment of overtime wages, as well as the Defendant's failure to provide

10 meal and rests breaks and issue itemized wage statements. When precisely the burden shifts is when

11 the Defendant does not contest the Plaintiff s facts, but instead asserts an affirmative defense. In this

12 case, the Defendant has indeed raised such a defense. The defense raised is that the rules governing

13 overtime payment and the providing of meal and rest breaks and itemized wage statements do not

14 apply due to a legal exception. Specifically, Defendant claims that because Plaintiff was a manager,

15 Defendant was exempt from providing overtime wages, meal and rest breaks and wage statements.

16 If this particular exception (or any other) is to apply, it is the Defendant's burden to prove it, not the

17 Plaintiffs to disprove. (In the overtime payment arena, this principle is well recognized, and has

18 been acknowledged by both State and Federal Courts in such cases as Corning Glass Works v.

19 Brennan (1974) 417 U.S. 188, 197,94 S.Ct. 2223,2229, Nordquist v. McGraw-Hill Broadcasting

20 Company, Inc. (1995) 32 Cal.AppAth 555, 562, 38 Cal.Rptr.2d 221, 225-226, and Cortez v.

21 Purolator Air Filtration Products Company (1998) 64 Cal.AppAth 882, 889, 75 Cal.Rptr.2d 551,

22 555). Thus, when considering Defendant's Motion For Summary Judgment seeking a ruling that the

23 Plaintiff-employee was an exempt manager, the Court is faced with an interesting situation. The

24 Court is faced with determining that the moving party Defendant has demonstrated that the

25 presumptive entitlement of Plaintiff to overtime pay, meal and rest breaks and itemized wage

26 statements is rebutted and that there remains no genuine dispute of material fact supporting its

27 affirmative defense that the Plaintiff, John Hansen, was an exempt manager, and thus not entitled

28 to the relief sought via his lawsuit.

PLAINTIFF'S OPP. TO MOTION FOR SUMMARY JUDGMENT

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1

In its Motion, Defendant identifies twelve allegedly undisputed facts in support ofits Motion.

2 Several of these facts are not entirely relevant to the issue before the Court, including the fact that

3 Dollar Tree operates approximately 220 retail stores throughout California, or that Plaintiffwas hired

4 by Dollar Tree in January of2006, or that Plaintiff's employment with Dollar Tree ended on or about

5 ovember 16,2007, or that Dollar Tree's stores vary in size from approximately 3,200 square feet

6 to 21,000 square feet. These facts are not entirely relevant here, nor are they in dispute.

7

Other ofthe allegedly undisputed facts enumerated by Defendant are not entirely untrue, but

8 are not entirely true either, because, as presented by the Defendant, they stand stripped ofmeaningful

9 context. For instance, it may be true that Defendant called Plaintiffa "manager," but what Defendant

10 called Plaintiff is distinct from how it treated him. It may be true that as a "manager" Plaintiff was

11 required to perform a number of management functions, but the amount oftime he spent performing

12 these functions, and just how virtually automated they were, belies the claim that he exercised much

13 discretion or independence and was, in practice, as well as in name, a "manager." It may be true that

14 Plaintiff earned more than three times the minimum wage, but what one earns hardly is sufficient

15 alone to establish whether one is a "manager," or not. And while it may be true that at any given

16 time Plaintiffperformed his duties there were usually two "associates" present, their presence hardly

17 transformed Plaintiff's status as a glorified cashier and stock boy into an exempt manager who was

18 not entitled to overtime pay, meal and rest breaks or the issuance to him by his employer of an

19 itemized wage statement with each pay check.

20

What Defendant is most correct about in its Motion is its identification of the foundational

21 premise of the Plaintiff's various causes of action. This premise is that Plaintiff was not in truth a

22 manager and thus was entitled, but did not receive, those things that ordinary employees are by law

23 entitled (and required) to receive, including overtime wages, meal and rest breaks, and itemized wage

24 statements. If Plaintiff was, in fact, a manager in more than merely name, none of his claims can be

25 supported and must be dismissed. Defendant is also correct in identifying two relevant standards

26 by which to determine whether Plaintiff was indeed a manager. One of these standards is found in

27 the laws of California and governs claims arising in State law; the other is found in Federal law and

28 governs the Plaintiff's Fair Labor Standards Act claim. Defendant, however, is not correct in its

PLAINTIFF'S OPP. TO MOTION FOR SUMMARY JUDGMENT

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Case3:07-cv-02050-SC Document61 Filed02/29/08 Page6 of 22

1 conclusion that Plaintiff cannot genuinely dispute facts essential to a finding that Plaintiff was not

2 a manager under either of these standards. And because Defendant is not correct in its conclusion,

3 its Motion should be denied.

4

II. ARGUMENT

5 A. GENUINE DISPUTES OF FACT DO EXIST WITH REGARD TO MATERIAL FACTS

6

SUPPORTING DEFENDANT'S AFFIRMATIVE DEFENSE TO PLAINTIFF'S

7

STATE LAW CAUSES OF ACTION

8

1. The Issue At The Heart Of Defendant's Motion Is Whether Plaintiff Spent More

9 Than Fifty Percent Of His Work Time Performing Managerial Duties

10

California's test for determining whether an employee is a manager is correctly set forth by

11 the Defendant. A manager is an employee (a) whose duties and responsibilities involve management

12 of the enterprise in which he is employed; and (b) who customarily and regularly directs the work

13 of two or more other employees; and (c) who has the authority to hire or fire other employees or

14 whose suggestions and recommendations as to the hiring or firing and as to the advancement and

15 promotion or any other change of status of other employees will be given particular weight; and (d)

16 who customarily and regularly exercises discretion and independent judgment; and (e) who is

17 primarily engaged in duties which meet the test of the exemption (i.e. management duties); and (f)

18 who earns a monthly salary equivalent to no less than two times the state minimum wage for full-

19 time employment (i.e. forty hours per week).

20

In determining whether one is a manager pursuant to this test, the Court does not possess

21 discretion to weigh the several elements and reach what might be called an equitable conclusion.

22 The test is not what might called a "balancing test." In truth, the elements of the test are

23 conjunctively, not disjunctively, arranged. This means that each element must be considered
24 individually, and each must be satisfied. Ifone ofthe elements does not apply to the employee, then

25 afinding that he is not a manager is mandatory. Such a test obviously places a heavy burden on the

26 party seeking to demonstrate that an employee was a manager.

27

It may (or may not) be true that several of the elements of the test are satisfied with regard

28 to the Plaintiff. For instance, there may be no dispute that Plaintiffs duties involved (at times, at

PLAINTIFF'S OPP. TO MOTION FOR SUMMARY JUDGMENT

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Case3:07-cv-02050-SC Document61 Filed02/29/08 Page7 of 22

1 least) management of Dollar Tree stores. Nor, perhaps, is there any dispute that he had some

2 authority regarding the hiring and firing of other employees. Nor, may there be any dispute that he

3 exercised some discretion and judgment. Nor is it disputable (for purposes ofargument, at least) that

4 he worked full-time and earned more than twice the minimum wage.

5

If there was indeed lack of substantial dispute of fact with respect to any ofthese matters (all

6 of which are material to this Motion), this would not conclude the inquiry. The Defendant still has

7 not met its burden. If no dispute exists as to the aforementioned "facts," the Defendant must still

8 demonstrate that there is no genuine dispute over the alleged fact that Plaintiff was "primarily

9 engaged in duties which meet the test of the exemption"- that is, whether he spent most of his time

10 managing, as opposed to performing non-management duties. As pointed out by the Defendant in

11 its Motion, the word "primarily" is defined in the Code ofRegulations as "more than one-half the

12 employee's work time." (See Defendant Dollar Tree Store, Inc. 's Motion For Summary Judgment,

13 at p. 11, citing 8 Cal. Code of Regulations Sec. 11 070(2)(N)). As shall be explained, the "fact" of

14 how much time Plaintiff spent performing management duties remains markedly in dispute. The

15 Defendant's lack of evidence in support of the contention that Plaintiff spent most of his time

16 performing such duties demonstrates the enduring controversy on this point.

17

Before examining Defendant's supposed evidence in support of its Motion, Plaintiff must

18 point out that he alleged in his Complaint the existence of a work environment that literally reduced

19 the traditional discretionary roll of managers to Pavlovian responses to stimuli. It has been alleged

20 by the Plaintiffthat there was essentially no discretion in the ordering process because Plaintiff was

21 simply required to review the automatically compiled electronic inventory data base and push a

22 button to send an order if the product numbers in the data base were below certain levels.

23 Furthermore, Plaintiffhas alleged that drastic pressures to keep operating costs down compelled the

24 scheduling of skeleton crews which seldom numbered more than two or three persons, and that in

25 order to serve clients and keep the shelves stocked with product, the so-called "manager" was

26 compelled to perform these tasks himself, rendering him indistinguishable from non-exempt, non-

27 managerial employees.

28

In its Motion, Defendant has not denied that its inventory was tracked by a bar code scanning

PLAINTIFF'S OPP. TO MOTION FOR SUMMARY JUDGMENT

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Case3:07-cv-02050-SC Document61 Filed02/29/08 Page8 of 22

1 system and a related computer program. It has not denied that ordering by the manager was as

2 simple as bringing the correct window up on a computer monitor and pushing a button to send a

3 message to the Defendant's distribution center requesting shipment of product. Defendant has not

4 denied that Plaintiffs job-site usually had no more than three employees in it at any time. It has not

5 denied that there was a great pressure on "managers" to keep staffing levels low, and, with it, store

6 overhead. Instead, Defendant has enumerated all of the so-called "managerial duties" admittedly

7 performed by Plaintiff, and then attempted to present evidence that performance ofthese "managerial

8 duties" consumed more than fifty percent ofPlaintiff s time. Examination ofthe evidence in support

9 ofDefendant' s position demonstrates just how misleading the Defendant's argument is, and just how

10 far short it falls from meeting the standard it must satisfy if its Motion is to be granted.

11

The enumeration of "managerial" duties performed does not establish that Plaintiff was a

12 manager and thus exempt from being paid overtime, or receiving meal and rest breaks, or receiving

13 itemized wage statements. It is not disputed that the duties identified by Defendant were actually

14 performed by Plaintiff(though the extent of discretion and independence necessary to perform these

15 duties, or which was permitted the Plaintiff, is in dispute). What is disputed, and genuinely and

16 materially so, is the contention by Defendant that Plaintiff performed these duties more than fifty

17 percent of his work time.

18

2. Defendant's Alleged "Undisputed" Facts In Support OBts Contention That Plaintiff

19 Spent Most Of His Time Performing Managerial Duties Are Not Actually Facts And Thus

20 Cannot Be Relied Upon In Placing This Matter Beyond Genuine Dispute.

21

Examination of Defendant' s Motion reveals Defendant's reliance on only two alleged facts,

22 or sources of facts, supporting the conclusion that Plaintiff spent more than fifty percent of his time

23 performing exempt managerial duties.

24

a. The Hernandez Declaration Does Not Present Nor Support Any Undisputed Fact

25

The first "fact" is found on page 15 ofDefendant's Motion Memorandum, beginning on line

26 19. After identifying a series of managerial duties performed by Plaintiff, Defendant states: "all

27 these duties required Hansen's independent discretion and judgment and consumed more than fifty

28 percent (50%) of his work time." This statement is not a fact. Instead, it is a mere conclusion.

PLAINTIFF'S OPP. TO MOTION FOR SUMMARY JUDGMENT

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Case3:07-cv-02050-SC Document61 Filed02/29/08 Page9 of 22

1 Alone, without factual support, it establishes nothing.

2

Following the conclusory statement is what appears on its face to be a reference to evidence

3 in its support. The reference appears parenthetically at the end of the statement. It is identified in

4 parentheses as paragraph 6 ofthe supporting Declaration ofCarlos Hernandez. In this Declaration,

5 Mr. Hernandez identifies himself as a Regional Training Manager employed by Dollar Tree. In

6 Paragraph 6, Mr. Hernandez states that when training store managers, "I tell them that planning is

7 the key to success in operating a store." He explains that he tells store managers "that 25% to 30%

8 oftheir time must be devoted to planning the staffing and operations ofthe store to maximize sales."

9 He then goes on to describe in detail the procedures he instructs them to follow. He concludes the

10 paragraph with the statement: "If a store manager spends 25% to 30% of his time in planning, and

11 taking into consideration the remaining supervisory functions to be performed, the Store Manager

12 will spend more than 50% of his time on management responsibilities."

13

In its Motion Memorandum, Defendant asserts as fact that "all duties" described as

14 managerial which were performed by PlaintiffJohn Hansen "consumed more than fifty (50%) ofhis

15 work time." The presentation of this alleged fact is unconditional and applies expressly and

16 exclusively to John Hansen.

17

Mr. Hernandez' statement, however, is hardly so unconditional as Defendant suggests, and

18 on its face does not apply to John Hansen at all. The statement begins with the protasis "if," which

19 signals the coming of a purely conditional statement. The statement itself indeed lives up to the

20 expectation created by its first word. "Ifa store manager spends 25% to 30% ofhis time in planning,

21 and taking into consideration the remaining supervisory functions to be performed, the Store

22 Manager will spend more than 50% of his time on management responsibilities." The statement
23 begs the question: what ifthe store manager only spends 5 percent ofhis time in planning? What

24 is the result then? Mr. Hernandez does not tell us, but logic compels the inference that by changing

25 the conditions in the form of the numeric variables, his conclusion (and Defendant's) is necessarily

26 altered. Mr. Hernandez's statement clearly is not a fact; it is a theorem. It has nothing expressly to

27 do with the Plaintiff. It does not relate to Plaintiffs actual experience. The percentages themselves

28 are mere suppositions of someone who trains managers, not someone who performs the manager's

PLAINTIFF'S OPP. TO MOTION FOR SUMMARY JUDGMENT

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Case3:07-cv-02050-SC Document61 Filed02/29/08 Page10 of 22

1 duties. Therefore, the Declaration of Mr. Hernandez cannot support the conclusory statement

2 appearing in the Defendant's Motion Memorandum and must be disregarded by the Court.

3

As a final point on this subject, it is important to add that the Defendant's unsupported

4 conclusion not only fails on the basis oflogic, but simply is powerless to overcome the fact attested

5 to by Plaintiff that he not only spent more than 25 percent of his time performing non-managerial

6 cashier and stocking duties, but that the performance of such duties consumed more than half of his

7 work-time. (See ~ 7 of the Declaration ofJohn D. Hansen, filed herewith).

8

b. The Jacobson-Allen Declaration Rests On Faulty And Highly Disputable Premises

9 And Thus Fails To Support Defendant's Assertion That A Material Factual Dispute Has Been

10 Resolved In Defendant's Favor

11

Now if it was true that a store manager spent twenty-five to thirty percent of his time in

12 planning, and ifit was true that the store manager in question was John Hansen, and ifone then took

13 into consideration the remaining supervisory functions to be performed (whatever they might be),

14 it might be true that Plaintiff spent more than fifty percent of his work time performing management

15 responsibilities. This is exactly what the Defendant attempts to establish with its second alleged

16 undisputed fact (or group of facts) in support of its contention that Plaintiff was a manager and thus

17 exempt from State (and federal) wage and hour laws.

18

This second alleged fact appears on page 16 ofDefendant's Motion Memorandum. It comes

19 in the form of allegations as to proof of the amount of time Plaintiff spent in operating the cash

20 register. Why is this relevant? It is relevant because the time Plaintiff spent operating the cash

21 register is an essential component of a larger calculation of how much time Plaintiff actually spent

22 performing non-managerial duties. Cashiering and shelf stocking are two duties that are non-

23 managerial in nature. Plaintiff alleged in his Complaint that he spent most of his time at work

24 performing such duties. And he testified at his deposition that he spent more time cashiering than

25 shelf stocking. What Defendant wishes to demonstrate with its second "fact" is the truth of the

26 theorem that ifPlaintiffspent less than twenty-five percent ofhis time cashiering, he could not have

27 spent more than forty-nine percent of his time both cashiering and stocking, and must, therefore,

28 necessarily have spent more than fifty percent of his time performing managerial duties. This

PLAINTIFF'S OPP. TO MOTION FOR SUMMARY JUDGMENT

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Case3:07-cv-02050-SC Document61 Filed02/29/08 Page11 of 22

1 theorem and the logic supporting it are flawed because the theorem does not take into account other

2 non-managerial duties Plaintiffperformed, such as cleaning store facilities, grounds and equipment.

3 More significantly, the theorem's application to the facts is flawed due to the highly tenuous

4 reasoning connecting the facts to the theorem. In truth, the facts, such as they are, do not support the

5 theorem at all.

6

What are the facts supporting the theorem? What Defendant states in its Memorandum is

7 that:

8

9

Dollar Tree is able to ascertain the amount of time each store employee spent on a

10

cash register by reviewing certain cashier reports. (Brady Decl., ~ 7). These Reports

11

show that, as a Store Manager, Hansen spent an average of only 12% of his time in

12

the store cashiering. (Jacobsen-Allen Decl., ~ 12) ....Given Hansen's admission that

13

he spent more time cashiering than stocking, coupled with the fact that he spent only

14

12% of his time cashiering, Hansen cannot have performed non-exempt tasks more

15

than 25% of the time he worked. [Defendant's Memorandum of Points and

16

Authorities, 16:1-7].

17

18

But is it true that Cashier Reports unequivocally and undisputably establish that Plaintiff

19 spent an average of only 12% of his time in the store cashiering? To examine the veracity of this

20 alleged fact asserted by Defendant, we must look at the evidence cited in its support, which is

21 paragraph 12 of the Declaration ofCharlotta Jacobson-Allen.

22

Ms. Jacobson-Allen (who is a paralegal, not an accountant) declares that she examined the

23 Cashier Reports for the machines operated by Mr. Hansen. It was, she says, possible to identify the

24 machines used by Mr. Hansen by an electronically inputted code assigned to him, which he would

25 have entered into the register in order to operate it. The register, and the computer system linked to

26 it, was able to track how much time a particular cashier spent operating that register. By examining

27 the Cashier Reports generated by machines operated by Plaintiff, Ms. Jacobon-Allen says she was

28 able to calculate a raw number of minutes (and hours) spent by Plaintiff cashiering. Then, after

PLAINTIFF'S OPP. TO MOTION FOR SUMMARY JUDGMENT

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Case3:07-cv-02050-SC Document61 Filed02/29/08 Page12 of 22

1 determining that Mr. Hansen worked, on average, 49 hours per week, she calculated that Mr. Hansen

2 spent less than 12% of his time operating a cash register.

3

To simplify our inquiry, we can, for the sake of argument here (but not for trial purposes),

4 concede that Plaintiff worked, as Ms. Jacobson-Allen attests, on average of 49 hours per week.

5 Plaintiffhimselfbelieves this to be roughly accurate. (See ~ 4 ofthe Declaration ofJohn D. Hansen,

6 filed herewith). We cannot, however, concede her conclusion that Plaintiff spent less than 12

7 percent of this time operating a cash register. We cannot do so because it is not consistent with

8 Plaintiff's own recollection of his experience. (See ~ 7 of the Declaration ofJohn D. Hansen, filed

9 herewith), and, as importantly, because it is founded on a distortion ofthe underlying evidence. The

10 distorted nature of Ms. Jacobsen-AlIen's conclusion as to the time Plaintiff spent cashiering is not

11 on its face clear, though the lack of any copies of exemplar Cashier Reports forming the basis of her

12 calculations does give rise to a nebulous suspicion. When one actually examines but one of these

13 reports, and then takes into consideration Plaintiff's own testimony regarding that very same report,

14 that suspicion dissipates, and in its place emerges the un-blurred understanding that Ms. Jacobson-

15 Allen's fundamental premise, that the reports reflect all time spent by an employee manning a cash

16 register, is false. Examination of but one report reveals that the Cashier Reports track only the

17 amount of time dedicated to each customer transaction, and do not track time that passes between

18 each transaction.

19

To demonstrate this point, we need only examine the Cashier Report that was discussed at

20 Plaintiff's deposition and which was attached to the transcript of that deposition as Exhibit 64. The

21 Court can review this document itself by turning to Exhibit "A," attached to the supporting

22 Declaration ofJohn D. Hansen, filed herewith.

23

The Cashier Report in question relates to the week ofOctoberl, 2007, and includes October

24 6. 1 It is a very sparse document. It evinces five columns, headed, in sequence, with the words:

25 "store", "cashier number", "transactions date", "total transactions", and "total minutes." The fourth
26

27
1 For the veracity of the dates associated with this document we must trust Defendant's counsel,
28 who supplied this information to Plaintiff and his attorney at Plaintiffs deposition on November 1,2007.
See Deposition of John D. Hansen, 333: 19-24, true and correct copies of which pages are attached as Exhibit "B" to the Declaration ofJohn D. Hansen, filed herewith.

PLAINTIFF'S OPP. TO MOTION FOR SUMMARY JUDGMENT

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Case3:07-cv-02050-SC Document61 Filed02/29/08 Page13 of 22

1 entry below these headings represents, according to Defendant's counsel at Plaintiff's deposition,

2 the total number of transactions and total time spent on the register by Plaintiff on October 6. The

3 document apparently indicates that Mr. Hanson (whose cashier number is 56323) conducted 130

4 transactions in the space of 104 minutes on that day. In other words, on October 6, 2007, Mr.

5 Hanson served 130 individual clients in only 104 minutes (i.e. 1 hour and 44 minutes). If it is true

6 that he was only on the register for 104 minutes that day, he would have been serving one client

7 every 50 seconds. This means he would have scanned every item for purchase by a single client,

8 accepted payment either by cash, or check or charge, made change, provided a receipt, bagged the

9 purchased items and responded to any questions the customer had or issues they raised- all within

10 a mere 50 seconds. And he would have had to have done this for each client without stop for 104

11 straight minutes!

12

As unlikely as this seems, we need not rely solely on our own logic and common sense to

13 doubt its truth. We can refer to Plaintiff's own testimony regarding this very document.

14

At his deposition, Plaintiff was presented a copy of the document by Defendant's counsel,

15 who said:

16

17

This is a total of the time spent on the cash register at 2262 under cashier number

18

56323 for the week of October 1st, 2007 through October 6th, 2007. Do you see that

19

this report shows that you spent less than two hours on the register on October 6,

20

2007? Does that refresh your recollection in any way as to how much time you

21

actually spent on the register that day? (Transcript of the Deposition of John D.

22

Hansen, 333: 19-334:2, true and correct copies of which pages are attached to the

23

Declaration of John D. Hansen as Exhibit "B.").

24

25

Plaintiff's response was as follows:

26

27

28

PLAINTIFF'S OPP. TO MOTION FOR SUMMARY JUDGMENT

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1

Not necessarily. I'm curious how I could cash out 130 people in 140 (sic) minutes.

2

That doesn't make sense to me at all. I mean, I know I'm fast, but I don't see how

3

that could be necessarily possible. I don't know how they're calculating the minutes

4

on this. (Id., at 334:3-8).

5

6

Defendant's counsel suggested that the cash register allowed for a recording of the amount

7 of time it was being operated by a particular employee. Plaintiff expressed his doubt that it was

8 actually recording all ofthe time spent manning the register. Specifically he doubted that it recorded

9 the time between transactions. He doubted this because there simply was not enough time for him

10 to have served 130 clients in a mere 104 minutes (and presumably 140 minutes, too). He knew for

11 afact that he spent quite a bit oftime that particular day standing around between transactions and

12 that he worked at the register for more than 140 minutes. This is what he said:

13

14

that day I remember being on it for, like, three hours straight. Just standing there.

15

So I don't see how.... I don't see how this number can reflect the actual time I was

16

standing there at the register. (Emphasis added). (Id., at 334: 17-22).

17

18

Logic, common sense, our understanding of causality and our own experience with how

19 much time we all spend waiting in line for other people before us, and how long our own

20 transactions at a store tend to take, refute the assumption ofMs. Jacobson-Allen (and the Defendant)

21 that the time recorded on the Cashier Reports reflects all time spent by an employee at a particular

22 register. Instead, logic and common sense suggest that the Cashier Reports only record the time

23 during which the register and its attached scanner were in operation, from the beginning of each

24 transaction until the end of each transaction. Logic and common sense are supported by the

25 Plaintiffs own fact-based recollection and doubt as presented in the form of his oath-sworn

26

27

28

PLAINTIFF'S OPP. TO MOTION FOR SUMMARY JUDGMENT

07-2050SC 11

Case3:07-cv-02050-SC Document61 Filed02/29/08 Page15 of 22

1 testimony.2

2

It is interesting to reflect on what is known as "methodology" as it has been employed by the

3 Defendant. Instead of simply obtaining testimony from Plaintiff about how much time he spent

4 performing non-managerial tasks, or how much time he spent performing managerial tasks, or what

5 percentage of his time, in his estimation, he spent performing either class of tasks, the Defendant

6 carefully avoided eliciting such testimony throughout the fourteen hours Plaintiff was deposed. In

7 place oftestimony from Plaintiffs own mouth (or anyone else's) about the time he spent performing

8 various tasks, Defendant has constructed a strange, elaborate, tenuously connected and highly fragile

9 "factual" ediface that simply cannot withstand scrutiny either of its "facts" or its underlying logic.

1 0

Where, then, does this leave the Defendant? Well, at the very least, it leaves Defendant

11 without any factual support for its conclusion that Plaintiff spent most of his time performing

12 managerial duties. Does this mean that the time spent by Plaintiff performing non-exempt, non-

13 managerial tasks exceeded fifty percent of his work shifts? No, it does not. But, it does mean that

14 the Defendant has not met its burden to demonstrate that there remains no genuine dispute of

15 material fact that Plaintiff did not spend most of his time performing non-managerial tasks. A

16 genuine dispute of fact remains as to the amount of time Plaintiff spent cashiering (something that

17 is unquestionably material to this case). lfthe amount of time spent stocking shelves was less than

18 the time spent cashiering, and it remains in dispute whether Plaintiff spent more than twelve percent

19 of his time cashiering, the amount of time spent stocking shelves remains in dispute too- meaning

20 that it is genuinely disputable that Plaintiffspent less than eleven percent ofhis time performing this
21 task. And ifthese two key variables ofthe equation by which Defendant claims it is to be determined

22 how much ofPlaintiff's time was spent performing non-managerial duties remain in dispute, so too

23 does the amount oftime Plaintiffspent performing such duties.

24
25

26

27

2 Other entries on the Cashier Report for the week of October 1, 2007 equally support this

conclusion. The three other entries on the report indicate 52 transactions in 36 minutes on one day, 64

28 transaction in 62 minutes on another day, and 69 transactions in 48 minutes on the third day.

PLAINTIFF'S OPP. TO MOTION FOR SUMMARY JUDGMENT

07-2050SC 12

Case3:07-cv-02050-SC Document61 Filed02/29/08 Page16 of 22

1

c. The Minimal Amount Of Time Necessary And Actually Expended On Managerial

2 Duties Supports The Conclusion That A Genuine Dispute Remains Over How Much Time

3 Plaintiff Actually Spent Performing Non-Managerial Duties.

4

The genuineness of the enduring dispute as to how much time Plaintiff spent performing

5 managerial duties is further highlighted when examining the duties unique to the manager, what

6 those duties entailed and how simple and with what rapidity they were performed by the Plaintiff.

7 In doing so, we can even rely on some ofthe particular duties identified by Defendant. These duties

8 include ordering one hundred percent of frozen food, ordering 19.62 percent of all other store

9 merchandise, hiring sales associates, firing sales associates, counseling employees, scheduling 10 employees, evaluating employees, and delegating duties to his assistant managers.3

11

At Plaintiffs Deposition, Defendant did not ask Plaintiff many of the details regarding any

12 of these tasks, particularly with regard to how much time he spent on them. Certainly the ordering

13 of 100 % of frozen food sounds impressive, and sounds like it might have taken considerable time.

14 However, what is not clear from the evidence presented by Defendant is that the volume of all

15 products in the store, including frozen food, is tracked by an automated electronic data system. (See

16 ~ 9 of the Declaration of John D. Hansen, filed herewith). When a particular item is sold, it is

17 scanned by the cashier, and the number of items remaining in stock is automatically computed.

18 Ordering a product involves nothing more than pushing a few buttons to call up the relevant data

19

20

3 It should not be left unsaid that those tasks enumerated by Defendant as "managerial"which

were performed by Plaintiff were not all truly managerial in nature. Certainly hiring an employee is a

21 managerial task, as is training an employee and counse ling them. But the erecting of product displays? In

actuality, no originality or discretion was necessary in the setting up of product displays. Defendant

22 makes it seem as if Plaintiff spent time at a drafting board contemplating the most efficiently engineered

and aesthetically attractive arrangements of products. In reading Defendant's words, it is easy to

23 envision Plaintiff sitting in a neon lit room late at night, pencil behind his ear, sweat on his brow, one

24 hand in his temple in frustration and the other crumbling yet another defective schematic and tossing it,

absent-mindedly behind him, toward a waste receptacle surrounded by nearly identical crumbled wads of

25 paper. The truth was actually much different. In setting up displays, all Plaintiff did was follow

directions provided by Defendant: A connects to B, which connects to C, which connects to D. Some

26 changes might have been made to the design, but, as Plaintiff noted at his deposition, creativity was not

encouraged. (See Transcript of the Deposition of John D. Hansen, 54: 1-4, true and correct copies of

27 which pages are attached to the supporting Declaration ofJohn D. Hansen as Exhibit "B." See also said

28 Declaration, at 'Ill 0).

PLAINTIFF'S OPP. TO MOTION FOR SUMMARY JUDGMENT

07-2050SC 13

Case3:07-cv-02050-SC Document61 Filed02/29/08 Page17 of 22

1 base "screen" on a computer monitor, looking to see ifproduct levels have fallen below an arbitrarily

2 established threshold (established by the Defendant) and then pushing another button to transmit a

3 request for more product to the Defendant's regional supply hub. This process took, on average,

4 two hours per week. (See ~ 9 of the Declaration ofJohn D. Hanson, filed herewith). Subtracting

5 the two hours he spent ordering product from the total hours he worked each week, Plaintiff would

6 have still have approximately 48 hours, or two thousand, eight hundred and eighty (2,880) minutes

7 remaining to dedicate to performance of all of his other weekly tasks. Put another way, ordering

8 product consumed about four (4) percent of Plaintiffs work time each week.

9

Regarding the hiring of sales associates, Defendant never asked Plaintiffwhat percentage of

10 his time was dedicated to this task, or how much total time per week was spent performing it.

11 However, it was not a lot. The Court should keep in mind that the workers hired by Plaintiff were

12 non-skilled, minimum wage earners. No education was required. Those individuals hired by

13 Plaintiff simply needed to be able to memorize and retain the very basic knowledge of how to scan

14 a bar code, how to push the appropriate button on a cash register, and how to place an item on a

15 shelf. There was no elaborate vetting process here, no back-ground investigation, no credit checks,

16 no former employers or references to consult, and no second tier interview to conduct. It was simply

17 a matter of handing a person an application, having them fill it out, and, then, most likely, telling the

18 person when they needed to show up. How long did it take Plaintiff to hire any given employee?

19 Plaintiff himself testified that he spent about a half hour conducting the hiring interview. (See

20 Transcript of Deposition of John D. Hansen, 171 :16-172:3, true and correct copies of which pages

21 are attached as Exhibit "B" to the Declaration ofJohn D. Hansen, filed herewith). In his Declaration

22 in support of this Opposition Brief, Plaintiff clarifies that the interview included the filling out and

23 reviewing of the application package. (See ~ 11 of the Declaration of John D. Hansen, filed

24 herewith). Even ifhe hired a new employee every week (which he did not), the time it took for him

25 to complete the process would have amounted to only one (1) percent of his work week.

26

Regarding the training of employees we must reiterate that the type of work to be performed

27 was non-skilled in nature. Training was not elaborate. No one was sent to a specialized academy

28

PLAINTIFF'S OPP. TO MOTION FOR SUMMARY JUDGMENT

07-2050SC 14

Case3:07-cv-02050-SC Document61 Filed02/29/08 Page18 of 22

1 to learn how to stack canned goods, or hang a package of chinese made panty-hose on a rod stuck

2 into peg board, or set a plastic immitation ming vase (complete with exagerated mold seams) on a 3 plywood shelf. No one needed to sit in lengthy, week-long seminars learning alternative theories of

4 bar code scanning from learned professors well published in their field. Training consisted ofsimply 5 showing an employee where "stuff' was and what shelf to put it on, how to pass an item of

6 merchandise over the scanner so that the bar code was electronically read, how to listen for the 7 "beep" to know that the item had been properly scanned, how to push a button to open the cash

8 register, and how to remove a receipt from the register and hand it (without dropping it) to the

9 customer. How long did this all take? In truth, it did not take long. How long did it take for 10 Plaintiff to train any given employee? As he noted in his Declaration in support of this Opposition

11 Brief, Plaintiff stated that it usually took him no more than an hour, over an extended period oftime, 12 to train someone to stock shelves. He stated, too, that it usually took him approximately half an hour 13 to train someone to operate the cash register and customer check-out station. Since (according to

14 his recollection at this time) he hired no more than twenty-five (25) persons the entire time he 15 worked for Defendant, the time he spent training personnel was likely no more than 27.5 hours.4 16 Since he worked, according to Dollar Tree's figures (as reported in the Declaration of Charlotta 17 acobsen Allen), nearly fifty (50) hours a week,S and he worked as a Manager (according to 18 Defendant) a total of sixty-eight (68) weeks (from July of 2006 to November 16,2007),6 or 3,400

19 hours, it must be true that he spent a mere .81 percent of his work time training employees.

20

Regarding scheduling, this, too, was hardly a laborious, time-consuming task. And it was

21 one that was largely handled by Defendant directly via a computerized scheduling system called

22 Compass. When he came to work for Dollar Tree, Plaintiff did input the names of employees and
23 1/------------------

24

4 Defendant's records, of course, should contain the exact number of persons Mr. Hansen hired.

Without access, at this time, to those records to refresh his recollection, Mr. Hansen must rely on his

25 memory on this point.

26

5 See ~ 10 of the Declaration ofCharlotta Jacobsen-Allen in support of Defendant's Motion For

27 Summary Judgment.

28

6 See Defendant's Motion For Summary Judgment, 3: 15-16.

PLAINTIFF'S OPP. TO MOTION FOR SUMMARY JUDGMENT

07-2050SC 15

Case3:07-cv-02050-SC Document61 Filed02/29/08 Page19 of 22

1 the times they were to work into the scheduling program, but after several weeks, the time he spent

2 on scheduling plummeted to virtually nothing. The only scheduling tasks he performed afterward

3 were merely making modifications to cover gaps left open in the computer generated schedule and

4 to make changes resulting from schedule change requests of employees. (See Transcript of the

5 Deposition of John D. Hansen, 58: 19-60: 13, true and correct copies of which pages are attached as

6 Exhibit "B" to the supporting Declaration ofJohn D. Hansen). On average, Plaintiff believes he

7 spent no more than forty-five (45) minutes per week working on the schedule. (See ~ 14 of the

8 Declaration ofJohn D. Hansen, filed herewith). In other words, Plaintiff spent about 1.5 percent

9 of his weekly work time dedicated to scheduling.

10

The facts presented in the previous several paragraphs, which are derived in part from data

11 collected by the Defendant, indicate that Plaintiff spent no more than twelve (12) percent of his time

12 performing the key managerial functions. This hardly concludes the matter. But Plaintiff need not

13 establish anything conclusively at this point. All Plaintiff need do is demonstrate that a reasonable

14 dispute of material fact remains. Specifically, Plaintiff needs to demonstrate that a dispute remains

15 as to how much time he spent performing non-managerial tasks, as opposed to managerial ones. By

16 pointing out the faulty premises of Defendant's own factual assertions, and how Defendant's own

17 facts in support of its position are neither facts nor undisputed, and how the evidence supports a

18 genuine dispute over how much time Plaintiff spent performing managerial tasks, Plaintiff has

19 clearly highlighted just how inadequate a showing Defendant has made. Because Defendant has

20 clearly failed to meet its burden of demonstrating that all prongs of the California test for

21 determining managerial status have been satisfied, the Defendant's Motion as to the Plaintiff s State

22 law based causes of action should be overruled.

23 B. DEFENDANT HAS NOT MET ITS BURDEN WITH REGARD TO PLAINTIFF'S

24

FLSA CAUSE OF ACTION

25

Defendant is correct in pointing out the difference between the standards applicable in state

26 claims arising pursuant to the Labor Code and federal claims based on the Fair Labor Standard Act.

27 The relevant laws are similar- which should not be surprising once one reflects on the fact that the
28

PLAINTIFF'S OPP. TO MOTION FOR SUMMARY JUDGMENT

07-2050SC 16

Case3:07-cv-02050-SC Document61 Filed02/29/08 Page20 of 22

1 State's overtime law was derived from the federal one. Where the two standards differ is on the

2 effect of a finding that a "manager" spent more than half of his or her time performing non-

3 managerial tasks. Under state law, the effect of such a finding is to render the "manager" not exempt

4 from requirements that employers compensate employees overtime wages, provide them with meal

5 and rest breaks, and issue them itemized wage statements. Under the FLSA, there is potentially no

6 effect at all. As noted in 29 C.F.R. Sec. 541.103,

7

8

In the ordinary case it may be taken as a good rule ofthumb that primary duty means

9

the major part, or over 50 percent, of the employee's time. Thus, an employee who

10

spends over 50 percent of his time in management would have management as his

11

primary duty. Time alone, however, is not the sole test, and in situations where the

12

employee does not spend over 50 percent of his time in managerial duties, he might

13

nevertheless have management as his primary duty if the other pertinent factors

14

support such a conclusion. Some ofthese pertinent factors are the relative importance

15

of the managerial duties as compared with other types of duties, the frequency with

16

which the employee exercises discretionary powers, his relative freedom from

17

supervision, and the relationship between his salary and the wages paid other

18

employees for the kind of nonexempt work performed by the supervisor.

19

20

The difference between the applicable state and federal standards, as noted by Defendant, is

21 qualitative, rather than quantitative. Time spent by an employee in performing managerial tasks is

22 relevant, but it is not alone determinative of the employee's managerial status.

23

Defendant does not spend much time discussing whether it has met its burden pursuant to

24 the federal standard to establish that there remains no genuine dispute of fact that Plaintiff was a

25 manager, and thus exempt from FLSA requirements. After a long discussion ofthe proper standard

26 to apply, what Defendant does do in support of its Motion for Summary Judgment as to Plaintiffs

27 FLSA cause of action is to merely conclude: "because Hanson meets the quantitative standard,
28

PLAINTIFF'S OPP. TO MOTION FOR SUMMARY JUDGMENT

07-2050SC 17

Case3:07-cv-02050-SC Document61 Filed02/29/08 Page21 of 22

1 Hansen also meets the FLSA's qualitative requirements."

2

The logic of this statement is hardly unassailable. In fact, because it is built on a faulty

3 premise, it fails. As we have demonstrated in the previous section of this Brief, a genuine dispute

4 remains as to whether Plaintiff qualifies as a manager under the State's quantitative standard. If a

5 genuine dispute of material fact remains as to the Plaintiffs State claims, Defendant's conclusion

6 with respect to Plaintiff s FLSA claim, necessarily and logically does not follow. The conclusion

7 does not follow because it is based on the lack of such a dispute. In other words, ifB is dependent

8 upon the veracity of A, but A is not indisputably established as true, B cannot be indisputable either.

9

Beyond this fatally flawed argument, Defendant offers nothing of substance in support of

10 dismissal of Plaintiffs FLSA cause of action. In fact, Defendant actually abandons its effort to

11 dismiss the claim, stating: "summary judgment is not appropriate for Hansen's FLSA claim

12 based on the FLSA's qualitative standard." (Emphasis added).

13

Plaintiff agrees with this conclusion.

14

III. CONCLUSION

15

It has been noted that the Moving Party bears the burden of establishing the non-existence

16 of any genuine dispute of material fact if it is to prevail at summary judgment. Defendant here has

17 brought a motion seeking summary jUdgment with respect to all of Plaintiffs causes of action, save

18 one. This one exceptional cause of action- Plaintiffs FLSA claim- Defendant has, in the end,

19 expressly declared to be not appropriately subject to a Motion For Summary Judgment. Regarding

20 the other causes of action, Defendant has correctly stated that they rest upon a single premise: that

21 Plaintiff was not in substance a manager, and, therefore, was not exempt from payment of overtime

22 wages, the taking of meal and rest breaks and the issuance to him by the employer of itemized wage

23 statements. Defendant correctly surmises that if Defendant could establish that there existed no

24 genuine dispute of fact that Plaintiff was actually a manger, all of the other causes of action would

25 fail. However, Defendant has not met its burden in demonstrating beyond genuine dispute that

26 Plaintiff was a manager. Defendant has failed to establish that there is no genuine dispute of fact

27 with respect to at least one of the mandatory elements of the test applicable in California in

28

PLAINTIFF'S OPP. TO MOTION FOR SUMMARY JUDGMENT

07-2050SC 18

Case3:07-cv-02050-SC Document61 Filed02/29/08 Page22 of 22

1 determining whether an employee is an exempt manager. The element ofthe test that Defendant has

2 obviously failed to establish is the element that an employee is a manager ifhe or she spends more

3 than fifty percent of his or her time performing managerial duties. Defendant argues that facts

4 undisputably establish that the time Plaintiffspent performing the non-managerial tasks ofcashiering

5 and stocking shelves amounted to no more than twenty-five percent of his time. And yet the facts

6 establish no such thing. Plaintiff has demonstrated that the facts on which Defendant rests its

7 conclusion (and its Motion) on are not facts at all. Rather these "facts" are clearly mere assumptions

8 based on faulty, highly disputable premises. Specifically, the calculation oftime spent performing

9 cashiering duties rests on the assumption that the time recorded on Cashier Reports includes all time

10 spent by Plaintiff at the cash register, including time spent between transactions waiting for

11 customers. Logic, common sense and Plaintiff's own testimony assail this assumption and place into

12 genuine dispute not only the veracity ofthe assumption, but also the supposed fact-based conclusion

13 derived from it. The disputable nature of the Defendant's assumptions, evident in a variety of facts

14 presented by Plaintiff, demonstrate that all reasoning and factual conclusions derived from it are

15 fatally flawed. Consequently, the Motion brought by the Defendant for Summary Judgment should,

16 in its entirety, be denied.

17

18
Dated: 29 February 2008
19

THE EDGAR LAW FIRM

20

21

Donald S. Cigar, Esq.

Jeremy R. Fietz, Esq.

22

Rex Grady, Esq.

23

Attorneys for Plaintiff

24

25

26

27

28

PLAINTIFF'S OPP. TO MOTION FOR SUMMARY JUDGMENT

07-2050SC 19

 
 Case3:07-cv-02050-SC Document71 Filed07/08/08 Page1 of 8

United States District Court
For the Northern District of California

1

2

3

4

5 UNITED STATES DISTRICT COURT
6 NORTHERN DISTRICT OF CALIFORNIA
7

8 MIGUEL A. CRUZ, and JOHN D. HANSEN,) Case No. 07-2050 SC

individually and on behalf of all )

07-4012 SC

9 others similarly situated,

)

) Consolidated

10

Plaintiffs,

)

) ORDER DENYING

11

v.

) DEFENDANT'S MOTIONS

) FOR SUMMARY JUDGMENT

12 DOLLAR TREE STORES, INC.,

) AS TO JOHN HANSEN AND

) ROBERT RUNNINGS

13

Defendant.

)

)

14 ___________________________________)

)

15 ROBERT RUNNINGS, individually and )

on behalf of all others similarly )

16 situated,

)

)

17

Plaintiff,

)

)

18

v.

)

)

19 DOLLAR TREE STORES, INC.,

)

)

20

Defendant.

)

)

21

)

22 I. INTRODUCTION

23

This matter comes before the Court on the Motions for Summary

24 Judgment ("Motions") submitted by the defendant Dollar Tree Stores

25 "Defendant" or "Dollar Tree"). Cruz Docket No. 48, Runnings

26 Docket No 36. The plaintiffs John D. Hansen ("Hansen") and Robert

27 Runnings ("Runnings") each filed an Opposition and Dollar Tree

28 submitted replies. Cruz Docket Nos. 61, 63; Runnings Docket Nos.

Case3:07-cv-02050-SC Document71 Filed07/08/08 Page2 of 8

United States District Court
For the Northern District of California

1 49, 50. For the following reasons, Dollar Tree's Motions are

2 DENIED.

3

4 II. BACKGROUND

5

Miguel Cruz and Hansen, on behalf of themselves and all

6 others similarly situated, filed a class action against Dollar

7 Tree, alleging that they were improperly classified as exempt

8 managers and denied wages for overtime. First Am. Compl., Cruz

9 Docket No. 1, ¶¶ 2-4. Runnings filed a substantially similar

10 class action in California Superior Court, which Dollar Tree

11 removed to this Court. Runnings Docket No. 1. On August 30,

12 2007, the Court signed a Related Case Order after finding that the

13 two cases were similar. Cruz Docket No. 34; Runnings Docket No.

14 21. On November 20, 2007, the Court signed a Joint Stipulation

15 and Proposed Order for Consolidation of Actions signed by counsel

16 for Cruz, Hansen, Dollar Tree, and Runnings. Cruz Docket No. 45;

17 Runnings Docket No. 33.

18

19 III. OBJECTIONS TO DECLARATIONS AND REQUESTS FOR JUDICIAL NOTICE

20

As a preliminary matter, the Court addresses the various

21 objections raised by the parties to certain declarations.

22

A. Hansen Declaration

23

Dollar Tree objects to numerous statements in the declaration

24 filed by Hansen in Support of his Opposition to Summary Judgment.

25 Docket Nos. 60 (Hansen Decl.), 64 (Objections). Dollar Tree

26 argues that statements in the declaration contradict statements

27 made by Hansen at a prior deposition and that the Court should

28

2

Case3:07-cv-02050-SC Document71 Filed07/08/08 Page3 of 8

United States District Court
For the Northern District of California

1 therefore construe the declaration as a "sham" declaration. "The

2 general rule in the Ninth Circuit is that a party cannot create an

3 issue of fact by an affidavit contradicting his prior testimony."

4 Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 266 (9th Cir.

5 1991).

6

The Court reviewed Dollar Tree's objections, Hansen's

7 declaration, and Hansen's deposition testimony. Contrary to

8 Dollar Tree's arguments, the Court cannot conclude that Hansen's

9 declaration is "'sham' testimony that flatly contradicts earlier

10 testimony in an attempt to 'create' an issue of fact and avoid

11 summary judgment." Id. at 266-67. For example, Dollar Tree

12 objects to Hansen's statement in his declaration that "Dollar Tree

13 discouraged creativity." Hansen Decl. ¶ 10. During his

14 deposition, however, when asked by counsel for Dollar Tree whether

15 "the merchandising department at Dollar Tree encourages store

16 managers to be creative in setting up displays," Hansen replied

17 "Not really." Hansen Dep., Ex. A to Hirsch Decl., Cruz Docket No.

18 49, at 54. In another example, Dollar Tree objects to Hansen's

19 statement in his declaration that he had a clear recollection of

20 spending more than half of his time stocking shelves and working

21 the cash register. Hansen Decl. ¶ 7. Dollar Tree argues that

22 this directly contradicts his deposition testimony. During his

23 deposition, however, when Hansen was asked whether he could recall

24 what percentage of his time was spent stocking shelves, he

25 replied: "I can't really say specifically, but quite a bit. I

26 just remember that being quite a bit of my time." Hansen Dep.,

27 Ex. A to Supp. Hirsch Decl., Cruz Docket No. 67, at 324. The fact

28

3

Case3:07-cv-02050-SC Document71 Filed07/08/08 Page4 of 8

United States District Court
For the Northern District of California

1 that Hansen later was able to state that "quite a bit" was more

2 than half of his time does not lead to the conclusion that his

3 declaration is a sham declaration.1 Dollar Tree's remaining

4 objections to portions of Hansen's declaration are equally

5 unavailing and are thus OVERRULED.

6

B. Runnings Declaration

7

Dollar Tree also objects to various statements in the

8 declaration of Runnings. Dollar Tree argues that much of what

9 Runnings states in his declaration is directly contradicted by

10 statements made by Runnings during his deposition. After

11 reviewing the declaration and the excerpts of the deposition

12 testimony provided by Dollar Tree, the Court finds that the

13 alleged contradictions amount to little more than minor

14 inconsistencies that are not uncommon when one person testifies at

15 two different times, months apart, about the same events. Dollar

16 Tree's objections are OVERRULED.

17

C. Jacobson-Allen and Hernandez Declarations

18

Runnings objects to the declarations of Charlotta Jacobson-

19 Allen and Carlos Hernandez submitted in support of Dollar Tree's

20 Motions. Runnings Docket Nos. 39, 41. The Court need not reach

21 this issue, as Dollar Tree's Motion for Summary judgment is

22

23

1 Hansen does state in his declaration that Dollar Tree's

attorney never asked him how much time, or what percentage of his 24 time, was spent stocking and working the cash register. Hansen

Decl. ¶ 8. This is clearly incorrect, as a review of Hansen's 25 deposition demonstrates. Hansen Dep., Ex. A to Supp. Hirsch Decl.

at 323-24. Nonetheless, that Hansen could not remember every 26 question he was asked during the course of a deposition spanning

more than a day does not transform his declaration into a sham 27 declaration.

28

4

Case3:07-cv-02050-SC Document71 Filed07/08/08 Page5 of 8

United States District Court
For the Northern District of California

1 denied.

2

D. Request for Judicial Notice

3

Both parties submitted requests for judicial notice. Dollar

4 Tree seeks judicial notice of an order filed in Williams v. Dollar

5 Tree Stores et al., Case No. 01CC00329 (Sup. Ct. Cal., Orange

6 County, June 14, 2005) (Order and Judgment Granting Final Approval

7 of Settlement). Def.'s Request for Judicial Notice ("RJN"),

8 Runnings Docket No. 38. The request is GRANTED. See Hott v. City

9 of San Jose, 92 F. Supp. 2d 996, 998 (N.D. Cal. 2000) (stating

10 "[p]ursuant to Federal Rule of Evidence 201, the Court may take

11 judicial notice of papers filed in other courts").

12

Although this request is granted, the relevance of this

13 document is less than clear. Dollar Tree, in its Motion, asserts

14 that "Runnings, as a putative class member, is prevented from

15 asserting claims relating to overtime and meal and rest break

16 violations arising before December 11, 2004" because of the Order

17 and Judgment cited above. Mot. at 19-20. Nowhere in the Order

18 and Judgment, however, is the class of that action defined. This

19 Court, therefore, has no way of knowing whether Runnings would

20 have been part of that class. In addition, although Dollar Tree

21 asserts that December 11, 2004, is the operative date, the Court,

22 after reviewing the state court order several times, finds no

23 mention of this date. Instead, the Order and Judgment clearly

24 states that the effective date is "deemed by the Court to be the

25 date when this order and judgment is entered and filed by the

26 Court." RJN ¶ 7. That date was July 14, 2005.

27

For these reasons, Dollar Tree's request for judicial notice

28

5

Case3:07-cv-02050-SC Document71 Filed07/08/08 Page6 of 8

United States District Court
For the Northern District of California

1 is granted, but its argument that Runnings is somehow precluded

2 from asserting claims arising before December 11, 2004, is wholly

3 unsupported. Dollar Tree is free to raise this argument again so

4 long as it provides justification for its assertion.

5

Runnings seeks judicial notice of a declaration filed by an

6 attorney in another case filed in state court. Runnings' RJN,

7 Runnings Docket No. 53. The relevance of this document to the

8 current Motion is unclear. Runnings' request is therefore DENIED.

9

10 IV. LEGAL STANDARD

11

Entry of summary judgment is proper "if the pleadings, the

12 discovery and disclosure materials on file, and any affidavits

13 show that there is no genuine issue as to any material fact and

14 that the movant is entitled to judgment as a matter of law." Fed.

15 R. Civ. P. 56(c). "Summary judgment should be granted where the

16 evidence is such that it would require a directed verdict for the

17 moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250

18 (1986). Thus, "Rule 56(c) mandates the entry of summary judgment

19 . . . against a party who fails to make a showing sufficient to

20 establish the existence of an element essential to that party's

21 case, and on which that party will bear the burden of proof at

22 trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In

23 addition, entry of summary judgment in a party's favor is

24 appropriate when there are no material issues of fact as to the

25 essential elements of the party's claim. Anderson, 477 U.S. at

26 247-49.

27

A party moving for summary judgment on an issue where it does

28

6

Case3:07-cv-02050-SC Document71 Filed07/08/08 Page7 of 8

United States District Court
For the Northern District of California

1 not have the ultimate burden of persuasion at trial may satisfy

2 its initial burden of production in one of two ways. "The moving

3 party may produce evidence negating an essential element of the

4 nonmoving party's case, or, after suitable discovery, the moving

5 party may show that the nonmoving party does not have enough

6 evidence of an essential element of its claim or defense to carry

7 its ultimate burden of persuasion at trial." Nissan Fire & Marine

8 Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1106 (9th Cir. 2000).

9 "Once the moving party carries its initial burden, the adverse

10 party may not rest upon the mere allegations or denials of the

11 adverse party's pleading, but must provide affidavits or other

12 sources of evidence that set forth specific facts showing that

13 there is a genuine issue for trial." Devereaux v. Abbey, 263 F.3d

14 1070, 1076 (9th Cir. 2001) (internal quotation marks omitted).

15

16 V. DISCUSSION

17

After review of the parties' submissions, the Court finds

18 that triable issues of fact remain as to whether Plaintiffs'

19 employment positions with Dollar Tree are exempt under both the

20 California Labor Code and the Fair Labor Standards Act. Dollar

21 Tree's Motions are therefore DENIED.

22 ///

23 ///

24 ///

25 ///

26 ///

27 ///

28

7

Case3:07-cv-02050-SC Document71 Filed07/08/08 Page8 of 8

United States District Court
For the Northern District of California

1 VI. CONCLUSION

2

For the reasons discussed herein, the Court DENIES

3 Defendant's Motions for Summary Judgment. The parties are to

4 appear for a status conference on Friday, August 1, 2008, at 10:00

5 a.m. in Courtroom #1.

6

7

8

IT IS SO ORDERED.

9

10

Dated: July 8, 2008

11 UNITED STATES DISTRICT JUDGE
12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

8

 
 Case3:07-cv-04012-SC Document124 Filed03/25/09 Page1 of 31

SCOTT COLE & ASSOCIATES, APC
ATTORNEYS AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR
OAKLAND, CA 94612 TEL: (510) 891-9800

1 Scott Edward Cole, Esq. (S.B. #160744) Matthew R. Bainer, Esq. (S.B. #220972)
2 Molly A. Kuehn, Esq. (S.B. #230763) SCOTT COLE & ASSOCIATES, APC
3 1970 Broadway, Ninth Floor Oakland, California 94612
4 Telephone: (510) 891-9800 Facsimile: (510) 891-7030
5 Web: www.scalaw.com

6 Attorneys for Representative Plaintiffs and the Plaintiff Class
7

8

UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA, SAN FRANCISCO DIVISION

10

11 MIGUEL A. CRUZ and JOHN D.

) Case No.: C-07-4012 SC (Consolidated Action)

HANSEN, individually, and on behalf )

12 of all others similarly situated,

) CLASS ACTION

)

13

Plaintiffs,

) PLAINTIFFS’ AMENDED NOTICE OF

vs.

) MOTION AND AMENDED MOTION FOR

14

) CLASS CERTIFICATION; MEMORANDUM

DOLLAR TREE STORES, INC.

) OF POINTS AND AUTHORITIES

15

)

Defendant.

)

16

)

ROBERT RUNNINGS, individually, and ) Case No.: C-07-02050 SC (Consolidated Action)

17 on behalf of all others similarly situated, )

)

18

Plaintiffs,

)

vs.

)

19

)

DOLLAR TREE STORES, INC.

) Date:

May 1, 2009

20

) Time:

10:00 a.m.

Defendant.

) Courtroom: 1, 17th Floor

21

) Judge:

Hon. Samuel Conti

22

23

24

25

26

27

28

- i Plaintiffs’ Amended Notice of Motion and Amended Motion for Class Certification

Case3:07-cv-04012-SC Document124 Filed03/25/09 Page2 of 31

SCOTT COLE & ASSOCIATES, APC
ATTORNEYS AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR
OAKLAND, CA 94612 TEL: (510) 891-9800

1

TABLE OF CONTENTS

2

I. INTRODUCTION AND SUMMARY OF ARGUMENT . . . . . . . . . . . . 1

3 II. STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

2

4

A. Dollar Tree’s Organizational Structure . . . . . . . . . . . . . . . . . . . . . . . . 2

5

B. Every Facet of Store Management Is Standardized . . . . . . . . . . . . . . . 5

1. Store Managers Are Molded Through a Uniform Training

6

Experience . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

7

2. Irrespective of the Store, SMs Are Given and Directed to Use

Common Tools . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

8

3. Dollar Tree Endorses Uniform Treatment of All Class Members . 11

9 III. LEGAL ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

A. Standard for Class Certification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 10
B. The Rule 23(a) Requirements Are Satisfied . . . . . . . . . . . . . . . . . . . . 14

11

1. The Proposed Class is Sufficiently Numerous . . . . . . . . . . . . . . . 14

12

2. The Class Representatives’ Claims Are Typical . . . . . . . . . . . . . . 14

3. The Proposed Class Representative Will Adequately Represent

13

the Class . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

14

C. The Common Question Standards of Rule 23(a)(2) and 23(b)(3) Are

Satisfied . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

15

1. The Commonality Standard(s) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

16

2. All Class Claims Share the Same Questions of Law . . . . . . . . . . . 17

3. Common Questions of Fact Predominate . . . . . . . . . . . . . . . . . . . 18 17
a. Dollar Tree’s Certification Process Ensures SM Conformity . 18

18

b. How Much Time Managers Spend on Any Work Task Is

Presently Irrelevant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 19
D. A Class Action Is the Superior Method of Adjudicating These Claims 21

20

E. Class Certification Permits Use of a Streamlined Trial Plan . . . . . . . . 23

21 VI. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

22

23

24

25

26

27

28

- ii Plaintiffs’ Amended Notice of Motion and Amended Motion for Class Certification

Case3:07-cv-04012-SC Document124 Filed03/25/09 Page3 of 31

SCOTT COLE & ASSOCIATES, APC
ATTORNEYS AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR
OAKLAND, CA 94612 TEL: (510) 891-9800

1

TABLE OF AUTHORITIES

2 CASES
3

4 Armstrong v. Davis 275 F.3d 849 (9th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

5 Arnold v. United Artists Theatre Circuit, Inc.

6

158 F.R.D. 439 (N.D.Cal. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

7

Bell v. Farmers Ins. Exch. 115 Cal.App.4th 715 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

8 Blackie v. Barrack

524 F.2d 891 (9th Cir. 1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

9

Boggs v. Divested Atomic Corp.

10

141 F.R.D. 58 (S.D.Ohio 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

11

Bufil v. Dollar Financial Group, Inc. 162 Cal.App.4th 1193 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

12 B.W.I. Custom Kitchens v. Owens-Illinois, Inc.

13

191 Cal.App.3d 1341 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

California Rural Legal Assistance v. Legal Services Corp.

14

917 F.2d 1171 (9th Cir. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

15 Day v. NLO

851 F.Supp. 869 (S.D.Ohio 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

16 Domingo v. New England Fish Co.

17

727 F.2d 1429 (9th Cir. 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

18

Dukes v. Wal-Mart, Inc. 509 F.3d 1168 (9th Cir. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

19 Earley v. Superior Court

79 Cal.App.4th 1420 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

20

EEOC v. O & G Spring & Wire Forms Spec. Co.

21

38 F.3d 872 (7th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

22 Eisen v. Carlisle & Jacquelin 417 U.S. 156 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

23 Employment Dev. Dept. v. Superior Court

24

30 Cal.3d 256 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

General Tel. Co. v. EEOC

25

446 U.S. 318 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

26 General Tel. Co. of Southwest v. Falcon

457 U.S. 147 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

27 Gentry v. Superior Court

28

42 Cal.4th 443 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Page(s)
13 14, 15 13, 21, 23 23 22 13 21, 23 15 24 21, 23 13, 16 13 21 14 21 14 15 22

- iii Plaintiffs’ Amended Notice of Motion and Amended Motion for Class Certification

Case3:07-cv-04012-SC Document124 Filed03/25/09 Page4 of 31

SCOTT COLE & ASSOCIATES, APC
ATTORNEYS AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR
OAKLAND, CA 94612 TEL: (510) 891-9800

1 German v. Federal Home Loan Mortg. Corp.

885 F. Supp. 537 (S.D.N.Y. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

2

Ghazaryan v. Diva Limousine, Ltd.

3

169 Cal.App.4th 1524 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

4

Hanlon v. Chrysler Corp. 150 F.3d 1011 (9th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

5 Harper v. 24 Hour Fitness, Inc.

6

167 Cal.App.4th 966 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Hilao v. Estate of Marcos

7

103 F.3d 767 (9th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

8 In re Mego Fin. Corp. Sec. Litig.

213 F.3d 454 (9th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

9 Jenkins v. Raymark Indus.

10

782 F.2d 468 (5th Cir. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

11

Jordan v. County of Los Angeles 669 F.2d 1311 (9th Cir. 1982)

12

vacated on other grounds, 459 U.S. 810 (1982) . . . . . . . . . . . . . . . . . . . .

Labor/Community Strategy Ctr. v. L.A. County Metro. Transp. Auth.

13

263 F.3d 1041 (9th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

14 Lerwill v. Inflight Motion Pictures, Inc.

582 F.2d 507 (9th Cir. 1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

15 McLaughlin v. Ho Fat Seto

16

850 F.2d 586 (9th Cir. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

17

Moore v. Hughes Helicopters, Inc. 708 F.2d 475 (9th Cir. 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

18 Mullen v. Treasure Chest Casino, LLC

186 F.3d 620 (5th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

O’Connor v. Boeing North American, Inc.

20

184 F.R.D. 311 (C.D.Cal. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

21 O’Connor v. Boeing North American, Inc. 197 F.R.D. 404 (C.D.Cal. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

22 Parra v. Bashas’, Inc.

23

536 F.3d 975 (9th Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Pettway v. American Cast Iron Pipe Co.

24

494 F.2d 211 (5th Cir. 1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

25 Prince v. CLS Transportation, Inc.

118 Cal.App.4th 1320 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

26 Ramirez v. Yosemite Water Co., Inc.,

27

20 Cal.4th 785 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

28

14 22 14, 15, 16, 21 13 21, 23 15 13
14 24 13, 15 24 14 16 23 13 16 23 22 2

- iv Plaintiffs’ Amended Notice of Motion and Amended Motion for Class Certification

Case3:07-cv-04012-SC Document124 Filed03/25/09 Page5 of 31

SCOTT COLE & ASSOCIATES, APC
ATTORNEYS AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR
OAKLAND, CA 94612 TEL: (510) 891-9800

1

Sav-On Drug Stores, Inc. v. Superior Court

2

34 Cal.4th 319 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3 Staton v. Boeing Co. 327 F.3d 938 (9th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

4 Stewart v. General Motors Corp.

5

542 F.2d 445 (7th Cir. 1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

6

Walters v. Reno 145 F.3d 1032 (9th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

7

Wang v. Chinese Daily News, Inc.

8

231 F.R.D. 602 (C.D.Cal 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

9

10 FEDERAL RULES/STATUTES
11 Fed. Rules of Civil Procedure: Rule 23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
12

13

Rule 23(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

14

Rule 23(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

15

Rule 23(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Rule 23(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Rule 23(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

17 Rule 23(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

18

19

Rule 23(b)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Rule 23(c)(1)(C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Rule 23(c)(4)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

21 Rule 23(c)(4)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

22

Rule 23(d)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

23

24 CALIFORNIA STATE STATUTES
25 Civil Bus. & Prof. Code:

26

§ 17200, et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

27

28

12, 13, 17, 20-25
14
21
15 12, 16, 17, 19, 20, 23
13, 14, 25 1, 13, 14, 25 14 15, 16 14 15 13 1, 13, 15, 16, 25 13 13 24 1
17, 21

- v Plaintiffs’ Amended Notice of Motion and Amended Motion for Class Certification

Case3:07-cv-04012-SC Document124 Filed03/25/09 Page6 of 31

SCOTT COLE & ASSOCIATES, APC
ATTORNEYS AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR
OAKLAND, CA 94612 TEL: (510) 891-9800

1 Labor Code:

2

§ 203 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3

§ 226 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

4

§ 226.7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

§ 512 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
§ 1174 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

6

7 TREATISES & SECONDARY RESOURCES
8 Newberg on Class Actions (4th ed. 2002):
9 1 Newberg (4th ed.) § 3:5 at 233-35 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
10 1 Newberg (4th ed.) § 3:5 at 246-47 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 2 Newberg (4th ed.) § 4:25 at 169 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2 Newberg (4th ed.) § 4:25 at 174 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
3 Newberg (4th ed.) § 7:24 at 79 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
4 Newberg (4th ed.) § 9:63 at 451 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

15 PRACTICE GUIDES
16 Deskbook on the Management of Complex Civil Litigation § 2.61(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
17 Manual for Complex Litigation (2008) §11.493 . . . . . . . . . . . . . . . . . . . . . . . . .
18

19

20

21

22

23

24

25

26

27

28

18, 20, 25 18 17, 24 17, 24 25
14 14 16 13 13 23
24 24

- vi Plaintiffs’ Amended Notice of Motion and Amended Motion for Class Certification

Case3:07-cv-04012-SC Document124 Filed03/25/09 Page7 of 31

SCOTT COLE & ASSOCIATES, APC
ATTORNEYS AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR
OAKLAND, CA 94612 TEL: (510) 891-9800

1

NOTICE OF MOTION

2 To Defendant and its Attorneys of Record:

3

Please take notice that, on May 1, 2009 at 10:00 a.m., or as soon thereafter as this matter may

4 be heard, before The Honorable Samuel Conti, United States District Court Judge, Courtroom 1,

5 17th Floor, 450 Golden Gate Avenue, San Francisco, California, Representative Plaintiffs Robert

6 Runnings, Miguel Cruz and John Hansen (“Plaintiffs”) will hereby and do move for an Order

7 certifying this case as a class action under Fed. R. Civ. P. 23(a) and (b)(3). Plaintiffs will proceed

8 upon this motion, the accompanying declaration, and any further briefing and arguments of counsel.

9

10

RELIEF SOUGHT

11

Plaintiffs request this Court grant class certification of this action under FRCP Rules 23(a) and

12 23(b)(3), appoint Plaintiffs’ counsel to serve as counsel to the class, and authorize notice to the class

13 of the pending action and its members’ right to opt-out under FRCP Rule 23(d)(2).

14

15

MEMORANDUM OF POINTS AND AUTHORITIES

16 I. INTRODUCTION AND SUMMARY OF ARGUMENT

17

There is predictability that comes from patronizing a chain retailer such as Dollar Tree. Mere

18 recognition of the company name and logo on the store’s facade engenders confidence as to what

19 the consumer’s experience there will be, even before s/he sets foot inside. At Dollar Tree, customers

20 can be sure that substantially the same items will be available for purchase and will be displayed in

21 almost exactly the same manner as they are in every other store in the chain. Moreover, the mix and

22 price of products is consistent, as is the service customers can expect. As expected, none of this

23 would be possible without great effort by Dollar Tree to homogenize its workforce, store layouts,

24 and operational standards, and without the use of Store Managers (“SMs” or “class members”) who

25 are expected to obediently implement its directives at the retail level.

26

For a chain retailer specializing in moving a substantial amount of one dollar (or less) product,

27 it is not difficult to imagine the controls and level of routinization required to maintain the

28 profitability of thousands of retail stores nationwide. It is also not surprising that Dollar Tree’s

- 1 Plaintiffs’ Amended Notice of Motion and Amended Motion for Class Certification

Case3:07-cv-04012-SC Document124 Filed03/25/09 Page8 of 31

SCOTT COLE & ASSOCIATES, APC
ATTORNEYS AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR
OAKLAND, CA 94612 TEL: (510) 891-9800

1 policies and practices have manifested themselves consistently throughout the company; Dollar Tree

2 offers comprehensive and completely-uniform training and training-related materials to SMs,

3 imposes uniform and predictable job duties, policies and procedures, common computer applications

4 and a host of other tools and directives that are consistent class-wide and which ensure operational

5 consistency and ease of SM migration from store to store without retraining. Due to this

6 occupational uniformity of SMs’ job duties, Dollar Tree elected to categorically exempt them from

7 an entitlement to overtime pay, admittedly without concern for any variances between them. That

8 singular decision, the homogeneity between SMs’ duties, and the multiplicity of proceedings that

9 class certification would prevent are what makes the core issues in dispute here perfect for class

10 treatment.

11

It may go without saying that, through this motion, Plaintiffs do not seek liability

12 determinations (e.g., which SM job tasks are exempt, how much time SMs spend on any of them and

13 whether those answers allow Dollar Tree to satisfy the quantitative legal standard under California

14 state law1), as those questions are distractions at the class certification stage; Plaintiffs only seek to

15 join the wage claims of California SMs so that the same case- and trial management tools can be

16 employed, just once, for all of them, with the singular goal of streamlining the litigation. Given the

17 homogeneity of SMs’ work and Dollar Tree’s expectations for that work, class treatment is clearly

18 the superior method for fairly and efficiently adjudicating the common claims.

19

20 II. STATEMENT OF FACTS

21

A. Dollar Tree’s Organizational Structure

22

Since 1986, Dollar Tree has “become the leading operator of discount variety stores offering

23 merchandise at the fixed price of $1.00.” (Ex. A, p. 6). Based in Chesapeake, Virginia, it operates

24

25

26

27 1

Ramirez v. Yosemite Water Co., Inc., 20 Cal.4th 785 (1999) [applying a quantitative test

in deciding the exempt status of “white collar” workers and distinguishing California’s “engaged

28 in” test for overtime exemptions from the federal “primary duty” test].

- 2 Plaintiffs’ Amended Notice of Motion and Amended Motion for Class Certification

Case3:07-cv-04012-SC Document124 Filed03/25/09 Page9 of 31

SCOTT COLE & ASSOCIATES, APC
ATTORNEYS AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR
OAKLAND, CA 94612 TEL: (510) 891-9800

1 thousands of stores nationwide, boasting impressive sales of $4.24 billion.2 Maintaining a low-cost

2 operational structure is essential to its success, a feat that could only be accomplished with an

3 incredibly-efficient and centrally-controlled business model. Dollar Tree “centrally manage[s] [its]

4 store and distribution operations from [Virginia]” and connects merchandise allocation and

5 inventory control to promote store efficiency. (Ex. A, pp. 6, 8)

6

Dollar Tree’s standardized chain store operation3 is designed to ensure that it knows exactly

7 what SMs are doing, and that they are all doing the same or substantially similar tasks. Every store

8 has the same management hierarchy with employees performing one of several highly-standardized

9 job functions. Each store employs a SM,4 one or more Assistant Managers (“AMs”)5 and various

10 part-time personnel holding non-management positions, the number assigned to each store being

11 dictated by the payroll budget (which is handed down to SMs from their supervisors, the District

12 Managers [“DMs”]).6 Specifically, at the store level, there are Stockers, who stock shelves and help

13 merchandise the stores, Cashiers who ring up and bag merchandise, and otherwise attend to

14

2
15

See, Ex. A, p. 8. Of these 3,411 stores (across 48 states), roughly 241 of them are situated

in California, where the SMs worked. (Id., p. 13); Ex. A, p. 18 [net sales of $4.24 billion as of

16 February 2, 2008]. Unless otherwise noted, all lettered Exhibits (“Ex.”) are to the Declaration of

Scott Edward Cole, Esq. (“Cole Decl.”), unless otherwise indicated.

17

3

Most Dollar Tree stores are small, relative to other major discount chains, with an

18 “optimal store size of between 10,000 and 12,500 square feet.” (Ex. A, p. 6).

19 4

Ex. B, p.18:22-19:2 [Each store employs a SM].

20 5

Ex. B, p. 33:15-18 [goal is one or more AMs at each store]; Ex. C, pp. 54:16-55:5 [stores

21 typically have multiple AMs]; Ex. C, pp. 128:11-129:3 [staff size tracks store size]; Ex. C, pp.

21:18-22:2 [Regional HR Manager (“Reg. HR Mgr.”) produces reports regarding whether a 22 store’s staffing level corresponds to sales volume]; Ex. B, p. 36:3-4 [AMs supervise associates];

23 Ex. C, pp. 55:10-56:2 [AMs coach and guide associates]; Ex. B, p. 113:3-9 [AMs direct associates even when SM is present.]; Ex. B, pp. 24:1-25:1 [AM job not changed over time].

24

6

Payroll hours and, thus, the number of associates at any store, is determined by a formula

25 calculating Sales Per Employee Hour (SPEH), maintained at a fixed percentage and set by upper

26

management. Ex. B, p. 281:15-20) [the number of employees depends mostly on the sales and labor budgets]; Ex. D, p. 98:1-9 [DM does not set labor budget]; Ex. E, pp. 30:21-31:5, 65:19-

27 22) [SPEH is given by the Regional Director (“Reg. Dir.”) to the DM, who then gives it to the SM]; Ex. E, p. 238:6-12 [DM can ask for hours and give input on what each store needs, but

28 Reg. Dir. pretty much sets the hours in stone].

- 3 Plaintiffs’ Amended Notice of Motion and Amended Motion for Class Certification

Case3:07-cv-04012-SC Document124 Filed03/25/09 Page10 of 31

SCOTT COLE & ASSOCIATES, APC
ATTORNEYS AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR
OAKLAND, CA 94612 TEL: (510) 891-9800

1 customer purchases, and Greeters who recognize entering customers and, occasionally, point them

2 in the right direction.7 According to Dollar Tree, the separation of duties between each position is

3 clear and their responsibilities are limited, in turn resulting in a high degree of job routinization.8

4

Defendant’s California field operations are divided geographically into regions, and then into

5 districts. At the lowest operational level are the in-store management personnel (SMs and AMs) who

6 report to their respective DMs.9 The DMs report to Reg. Dirs. (sometimes called Market Managers)10

7 who, in turn, report to Zone Vice-Presidents (“Zone VPs”), and so on, up the corporate chain.11 Each

8 DM supervises roughly ten stores, where SMs work.

9

On the Human Resources (“HR”) side, a clear hierarchy and lines of communication also

10 exist. Dollar Tree maintains tight controls over in-store conduct through the development - at the

11 home office in Chesapeake, Virginia – of a massive volume of policies and procedures, and the

12 trickle-down dissemination of those directives to each chain retail location across the country.12 Vis-

13 a-vis its message to SMs to follow these mandates to the letter,13 Dollar Tree can ensure a high level

14

15 7

Stockers, Cashiers and Greeters are part-timers. (Ex. C, pp. 57:12-23, 58:3-25; Ex. F, pp.

40:17-18, 41:3-17, 42:16-18.

16

8

See, e.g., Ex. B, pp. 227:13 - 228:1) [Sales associate job description accurately represents

17 what sales associates do today].

18 9

Ex. B, pp. 110:20-22, 19:5-7 [a couple dozen DMs evaluate, hire and fire SMs]; Ex. C, p.

19 16:20-24; Ex. F, pp. 126:21-127:9 [all DMs use same SM evaluation criteria].

20 10 Ex. B, pp. 20:8-10, 21:3 -5 [four Reg. Dir’s oversee California operations]; Ex. C, p.

26:18-20 [among other duties, Reg. Dir. establishes SPEH levels for the stores]. 21

11
22

Ex. C, pp. 26:22-27:3.

12
23

Ex. B, p. 187:4-12 [HR policies set by team in Virginia, not at regional level]; Ex. F,

p.50:17-20 [Reg. HR Mgrs do not develop policies].

24 13 Ex. B, pp. 187:13-22, 188:19-189:6, 192:13-17) [SMs not allowed to disregard policies
25 or procedures]. As such, predictably, SMs set neither policy nor procedure (Ex. D, p. 124:3-4),

26

just as their supervisors, the DMs, have no authority to create policies or procedures (Ex. C, p. 56:8-16 [policies never set by AM, SM or DM]); all this is done, as one would expect in a large

27 chain retail environment, at the corporate office.; Ex. C, p. 74:2-16 [Dollar Tree store policy mandates that “[n]o contracts are to be signed by anyone outside the Store Support Center.”]; Ex.

28 F, p. 56:3-4 [Store Support Center is at Virginia corporate office].

- 4 Plaintiffs’ Amended Notice of Motion and Amended Motion for Class Certification

Case3:07-cv-04012-SC Document124 Filed03/25/09 Page11 of 31

SCOTT COLE & ASSOCIATES, APC
ATTORNEYS AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR
OAKLAND, CA 94612 TEL: (510) 891-9800

1 of consistency in its retail stores from a home office thousands of miles away.

2

Should SMs have questions concerning policies or procedures, the sources of information are

3 readily available, plentiful and uniform. In promoting a goal that all information and resources be

4 made equally available to all SMs, each SM can call upon Reg. HR Mgrs.14 15 for answers, just as

5 they are encouraged to reach out to management personnel in all departments and at all levels.16

6 Since SMs are not permitted to either set or alter policy,17 they can rest assured that the answers to

7 their questions will be up-to-date and consistent, no matter where they work.18

8

9

B. Every Facet of Store Management Is Standardized

10

1. Store Managers Are Molded Through a Uniform Training Experience

11

As a chain retail store, Dollar Tree’s operations are necessarily highly standardized and, thus,

12

13 14 Ex. B, pp. 44:22-45:3 [SMs can call Reg. HR Mgrs. with questions about HR policy]; Ex.
B, pp. 45:4-6, 47:20-48:2) [two Reg. HR Mgrs (deponents Candace Camp and Reed Balderas) 14 support California SMs and DMs]; Ex. C, pp. 6:4-11, 9:14-10:3, 12:4-7.

15 15

Ex. B, pp. 65:11-14, 65:16-66:1, 66:2-67:1 [Dollar Tree has a three-step (i.e., verbal

16 warning, written warning, then termination) progressive disciplinary policy with regard to associates]; Ex. C, pp. 70:4-17, 153:2-6 [SM required to follow Dollar Tree’s statewide

17 progressive discipline policy]; Ex. C, p. 152:10-19 [SM must get DM’s and/or HR’s approval

before terminating employees]; Ex. B, pp. 67:8-15, 232:1-4, 232:16-19 [requirement of DM 18 approval for suspensions and terminations is a California-wide policy]; Ex. D, p. 56:2-9

19 [partnering with HR before an employee termination is part of SM training]; Ex. C, p. 34:4-11; Ex. F, p. 120:6-11 [highest pay increase SM can request for store associates is 3 percent]; Ex. C,

20 pp. 147:17-25, 181:25-182:17 [DM must approve pay increases].

21 16 Ex. F, p. 23:17-24 [open door policy exits by which SMs can call HR or Operations with

22

any question]; Ex. F, p. 19:4-15 [SMs can contact DMs, the Reg. Dir. or Zone VP directly with questions]; Ex. F, pp. 16:23-17:2 [SMs are given a list of people at the corporate office to contact

23 about various issues]; Ex. F, p. 72:16-18 [numerous positions are involved in SM development].

24 17 Ex. B, pp. 186:20-22, 187:1-3 [SMs do not set policy or procedure]; Ex. F, pp. 50:2551:9, 54:15-55:1 [Neither DMs nor SMs set policy]; Ex. D, pp. 50:15-51:5 [Since HR policy is
25 developed in the Virginia corporate office, Reg. HR Mgrs. do not make policy]. With no 26 authority to set policy or procedure at a local level, all SMs look to a common East Coast source.

27 18

Ex. F, pp. 78:10-79:11 [SMs and AMs also have access to Dollar Tree’s intranet (a.k.a.

“Dollar Tree Central”) through a back office computer which provides, among numerous other

28 things, the most current company-wide policies and procedures].

- 5 Plaintiffs’ Amended Notice of Motion and Amended Motion for Class Certification

Case3:07-cv-04012-SC Document124 Filed03/25/09 Page12 of 31

SCOTT COLE & ASSOCIATES, APC
ATTORNEYS AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR
OAKLAND, CA 94612 TEL: (510) 891-9800

1 so are the training programs that direct how those operations are to be performed. SMs are required

2 to complete a comprehensive Manager in Training (“MIT”) program,19 which is standardized as to

3 substance,20 instruction protocol,21 length,22 oversight23 and materials utilized,24 even before being

4 assigned to a store as its manager.25 Due to this extensive level of training and resultantly high

5 degree of homogenous instruction (which serves to further standardize the manner in which SMs

6 perform their duties), class members can enjoy a consistent work experience, irrespective of any

7 potential store-to-store variations and without the need for retraining upon transfer.26

8

9 19 Ex. B, pp. 54:20-55:4 [SM training program developed by corporate training department]; Ex. F, p. 64:19-24 [company’s goal is to be as consistent as possible with SM
10 training].

11 20

Ex. B, pp. 82:19-83:7, 190:16-19) [SMs training is the same, without regard to the store

12 Dollar Tree intends to assign him/her]; Ex. F, p. 74:13-18 [MIT is consistent nationwide].

13 21 Ex. C, pp. 29:17-23, 60:13-18, 61:1-10, 62:5-7 [uniformity in SM training is ensured

through each region’s use of a dedicated Regional Training Manager (“Reg. Training Mgr.”) 14 who oversees all new SM training]; Ex. C, pp. 85:25-86:17 [Reg. Training Mgr., along with a

15 District Store Trainer, ensures that MIT is consistent from person-to-person]; Ex. B, p. 107:3-20 [MIT manual sets order and pace for each section of SM training].

16 22
17

MIT is an eight week program. Ex. F, p. 72:22-23; Ex. D, p. 59:4-6.

23 Ex. B, pp. 106:13-107:2 [during MIT process, Reg. Training Mgr. is in close contact with 18 SM to see how s/he is doing in the program]; Ex. B, p. 104:16-21 [trainer uses a checklist to

19 confirm that each SM has completed all training modules]; Ex. C, p. 92:21-93:3 [Reg. Training Mgr. uses standardized checklist to verify each MIT segment is completed].

20 24 Ex. B, pp. 105:7-13, 105:20-22, 190:8-15 [MIT follows a uniform manual]; Ex. B, pp.
21 55:15-21, 82:19-83:7, 83:8-11 [documents used in MIT are developed by Lisa Hall, Director of

22

the corporate training department, located in Virginia]; Ex. C, pp. 84:24-85:8 [Lisa Hall creates the SM training materials]; Ex. F, pp. 75:23-76:4 [set of documents used for MIT is consistent

23 throughout the nation]; Ex. C, pp. 86:22-87:1 [Associate Handbook, Policy and Procedures and Safety Manual are some of the documents used in MIT].

24

25 SM to finish MIT before being assigned to a store. Ex. B, pp. 55:5-8, 56:8-14, 57:14-19; 25 Ex. D, p. 71:8-14.

26 26

Ex. B, pp. 132:11-133:21, 190:20-191:1 [SMs can be transferred, temporarily or

27 permanently, to other stores without any form of retraining since the stores have similar practices; if transferred, SMs just apply what they already know to a new environment and

28 different set of circumstances]; Ex. D, pp. 127:5-128:25 [SMs given the same MIT and the same

- 6 Plaintiffs’ Amended Notice of Motion and Amended Motion for Class Certification

Case3:07-cv-04012-SC Document124 Filed03/25/09 Page13 of 31

SCOTT COLE & ASSOCIATES, APC
ATTORNEYS AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR
OAKLAND, CA 94612 TEL: (510) 891-9800

1

Dollar Tree policy favors promotion to the SM position of individuals who are already

2 employees of the corporation,27 a policy which bears directly on personnel practices within the

3 stores. Thus, before an employee becomes a SM, s/he will oftentimes have already been thoroughly

4 steeped in the Dollar Tree culture and be intimately familiar with its retail operations, sometimes

5 through assignment to numerous retail locations.28 Since SMs and non-management personnel alike

6 are reassigned or permitted to transfer from one store to another, company operations and policies

7 and procedures are, through this migration of its workforce from store to store, widely disseminated,

8 and job duties are performed in adherence to corporate policy, rather than any disparate local mores.

9

10

2. Irrespective of the Store, SMs Are Given and Directed to Use Common Tools

11

Regardless of the store to which they may ultimately be assigned, once trained, SMs can

12 expect and have probably already experienced a high level of consistency at Dollar Tree’s retail

13 facilities and in their specific job duties. Even beyond the trademark look and feel that Dollar Tree

14 strives to maintain throughout its retail chain,29 the company has homogenized the SM position for

15 years30 through trickle-down management directives and a strong corporate culture which focuses

16 on corporate-centralization of operations and promoting customer service goals by all retail

17

18 program materials, irrespective of the type of store to which they may be assigned].

19 27

Dollar Tree promotes from within whenever possible. Ex. B, p. 71:5-7; Ex. D, p. 68:1-3.

20 28

Ex. F, p. 65:4-8 [Orientation and training also uniform for entry level positions [revealing

21 that, prior to promotion to SM, employees are already cast uniformly]; Ex. F, p. 65:15-23 [all

22

SMs use a checklist for orientation]; Ex. F, p. 71:21-72:2 [AM training materials are uniform]; Ex. C, p. 79:5-13 [consistency in associate training ensured by having Reg. HR Mgr. and/or DM

23 ensure SMs follow uniform new hire orientation]; Ex. D, pp. 71:23-25, 72:15-20, 74:17-20 [SM uses standardized new employee packet to ensure consistency and completeness of orientation].
24 Finally, SMs are expected to lead by consistent example, meaning that they are, in their own
25 work, consistent. Ex. C, pp. 105:13-106:5; Ex. F, p. 95:6-9.

29
26

Ex. B, p. 196:2-4 [Dollar Tree would not want to look like a Walgreens or Rite Aid].

27 30

Ex. F, pp. 124:25-125:7 [SM and AM job duties have not changed over the years]; Ex. C,

pp. 141:20-142:25 [SM job duties constant over time; no change in how SMs fulfilled their

28 duties; neither new products nor new tools affect SMs’ job duties or how they perform them].

- 7 Plaintiffs’ Amended Notice of Motion and Amended Motion for Class Certification

Case3:07-cv-04012-SC Document124 Filed03/25/09 Page14 of 31

SCOTT COLE & ASSOCIATES, APC
ATTORNEYS AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR
OAKLAND, CA 94612 TEL: (510) 891-9800

1 personnel.

2

This centralization of operations is most evident in Dollar Tree’s universally-available policies

3 and procedures and their enforcement by upper management. Indeed, the process of pouring over

4 countless documents does not start and end with MIT; on the job, these workers are provided with

5 myriad written and electronically-accessible documents,31 computer applications32 and an electronic

6 ordering system.33 Moreover, with even greater frequency than updates are made to those resources,

7 Dollar Tree bombards SMs with bulletins and planners34 which direct them how to merchandise/set-

8

9

10 31

Using “Dollar Tree Central,” SMs can find company-wide policies and procedures, check

email, operational and HR updates, promotional materials (Ex. B, pp. 99:12-18, 100:1-3, 155:3 -

11 155:10), Lawson – a HR tool available to SMs, COMPASS (Ex. C, pp. 38:19-25, 65:10-66:24,

95:15-20), newsletters, forms, benefits (Ex. F, p. 57:3-7), weekly bulletins, Freight Flow 12 standards, ARS and merchandise display standards (Ex. D, pp. 83:11-20, 98:24-99:22, 103:12-

13 24, 118:7-9). While Exs. G-L have evolved, the current versions are available through Dollar Tree Central and used in SM training, including an enormous Forms & Procedures Manual (Ex.
14 L); Ex. C, p. 121:5-22 [forms must be used by SMs without exception; SMs cannot create forms;

forms are also available online]. Ex. F, p. 139:17-22 [not even DMs can create forms]. 15

32
16

Associates are consistently supervised by the COMPASS scheduling system. (Ex. B, p.

121:14-22 [COMPASS universally used by SMs to create advance schedules.]; Ex. F, pp. 33:25-

17 34:19 [COMPASS is a statewide tool]; Ex. C, p. 96:17-19 [SMs trained on COMPASS during
MIT]). COMPASS warns when associates take short or long meal periods, are early or late for 18 work, or work overtime. Ex. M; Ex. E, pp. 46:13-19, 182:19-24 [overtime is unacceptable unless

19 DM pre-authorized]; Ex. E, p. 113:20-25 [COMPASS writes a schedule based on trends, etc.].

33
20

Ex. C, p. 106:7-18 [ARS tracks cashier sales and, when a product reaches a pre-defined

quantity, ARS will automatically re-order that item]. Dollar Tree maintains ARS for various

21 products. For other products, ordering is done via reference to an order book which recommends

a quantity to the SM, based on the store’s selling history of the item. (Ex. B, pp. 76:3-13, 77:1822 19, 78:9-17). Ex. E, p. 191:4-7 [“...ARS sets, which is store specific, store shelving specific,

23 where it tells you, after you order 10, if you need to order 12, it orders 12 for you.”].

24 34

Ex. B, p. 197:2-17 [Dollar Tree communicates to SMs how to distinguish its stores from

its competitors through the monthly planner and weekly merchandise bulletins]; Ex. F, p. 58:5-

25 10 [a Monthly Planner gives store management a floor schematic to use]; Ex. F, p. 59:5-11 [floor

26

prints sent out to the entire company are broken down by size of store; SM has to use the plan that matches his/her store]; Ex. E, p. 17:19-22 [when a Store Coordinator sets up a new store, the

27 SM can see first-hand where items are to go]; Ex. C, pp. 112:11-113:2, 114:11-21 [“Daily Planners” require the SM to perform certain tasks throughout the day]; Ex. D, p.12:24-25 [a

28 Sales planner is distributed to SMs every couple of months from the Zone Sales Director].

- 8 Plaintiffs’ Amended Notice of Motion and Amended Motion for Class Certification

Case3:07-cv-04012-SC Document124 Filed03/25/09 Page15 of 31

SCOTT COLE & ASSOCIATES, APC
ATTORNEYS AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR
OAKLAND, CA 94612 TEL: (510) 891-9800

1 up their stores.35 DMs even provide SMs with a “Playbook,”36 where they are to keep the weekly and

2 monthly planning instructions, designs and rules for endcaps and directions for getting freight to the

3 floor. All SMs follow the Playbook, once again demonstrating uniformity at all retail stores.

4

Through these tight controls, Dollar Tree strips SMs of nearly all discretion over

5 merchandising -- arguably, the essence of retailing. SMs are directed by the home office regarding

6 what products to carry, how much to order of each,37 what price points to establish for them,38 and

7 where,39 when and how to display those pre-selected retail items.40 Specifically, Dollar Tree’s

8 corporate office frequently provides each store with a fresh and detailed pre-set schematic for retail

9

10 35 Ex. D, p. 42:8-14 [Dollar Tree uses plan-o-grams (a layout of a department); a specific item goes on a specific shelf and is given a shelf label to reflect the price, the UPC and
11 information about the item]; note that some deponents call these “plan-o-guides.” See, also, Ex. 12 N. Ex. B, p. 96:18-22 [Dollar Tree provide SMs with a monthly promotional guides which has a
floor print showing primarily the front of the store. When the store opens, the store gets a floor 13 print of their store, a merchandised floor print.].

14 36 Ex. E, pp. 59:15-18, 60 [the Playbook is the “nuts and bolts of the business of each

15

store”]; Ex. O; Ex. E, p. 60:11-14 [SMs can pull all their information off the computer, all the numbers they need, stats, data, and input it in the playbook; they also use it to write orders]; Ex.

16 E, pp. 59:25-60:2 [Tellstrom encourages and requires his SMs to use the Playbook].

17 37 See, fn 33, supra; Ex. E, pp. 185:22-186:2 [Over and above the ARS, some or all DMs just tell SMs what to order]; Ex. L [Bates No. DTC02919] [“Checklisting is making sure that
18 every SKU in the Order Book is represented in your store in sufficient quantities to adequately 19 display them. Any exceptions must be approved by your District/Regional Manager.”].

20 38

Ex. C, pp. 41:24-42:3 [All pricing set by corporate office, not SMs].

21 39 Ex. B, p. 97:10-13. See, also, fn. 35, supra; Ex. G, p. DTC00725; Ex. D, p. 90:6-9 [SMs

expected to follow merchandise display standards]. 22

23

40 For example, Weekly Merchandise Bulletins, sent from Virginia, instruct SMs on specific displays to build, when and how seasonal merchandise should be brought to the floor,

24 stockroom organization, and other processes. See, e.g., Ex. G [Bates No. DTC00613]. Moreover, Dollar Tree provides SMs with a “Routine & Guidelines” (Ex. K) which dictates what they
25 should be doing throughout the day and provides task checklists; Ex. B, pp. 127:8-11,

26

201:21-202:6; Ex. D, p. 110:3-25 [“Daily and Weekly Store Routine” sets SM routine]; See e.g., Ex. E, pp. 60:5-18,275:2-6 [Mondays are “office” days per company policy]; Ex. B, pp. 119:1-

27 13, 206:20-22 [SMs “walk the floor” – conduct visual store inspections -- typically three times a day]; Ex. C, pp. 111:18-112:1 [“Daily Floor Walk”]; Ex. D, pp. 114:24-115:5, 115:16-20
28 [corporate office tells SM what to look for during the “Store Walk”].

- 9 Plaintiffs’ Amended Notice of Motion and Amended Motion for Class Certification

Case3:07-cv-04012-SC Document124 Filed03/25/09 Page16 of 31

SCOTT COLE & ASSOCIATES, APC
ATTORNEYS AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR
OAKLAND, CA 94612 TEL: (510) 891-9800

1 product display and store organization which is designed to ensure continuity throughout the chain,

2 leaving SMs with virtually no control over this major retail function.

3

To be certain that SMs are, in fact, adhering to Dollar Tree’s directives, SMs receive regular

4 evaluative store visits, not just from their immediate supervisors, the DMs,41 but also from Reg.

5 Dirs., the Reg. Training Mgrs., Asset Protection Managers (“Asset Mgrs.”) and even Zone VPs,42

6 all for the purpose of ensuring uniformity and profitability at the store level.43 Moreover, if SMs

7 should have questions about any of the policies and procedures they are required to follow, they

8 have access to the Support Center, a Technology Help Desk,44 fellow SMs (many having experience

9 at numerous Dollar Tree stores as SMs and/or in subordinate positions), multiple HR Managers,

10

11 41 Ex. E, pp. 18:2-4, 19:4-9 [DMs travel to all stores, spending two to four hours in each];

Ex. B, pp. 138:9-12, 140:15-19, 141:1-5, 246:7-13 [DMs perform store “I-visits,” then meet SMs 12 to go over company’s established practices]; Ex. C, pp. 32:6-22 [DMs visit stores to witness

13 store operations and generate a report]; see also, Ex. F, p. 25:9-18; Ex. C, pp. 124:16-125:2 [Ivisit serves as SM training tool]; Ex. D, pp. 136:19-25, 138:4-5 [DMs also conduct “Ops Store
14 Visits” to evaluate store performance, using the same form for all stores]; Ex. D, p. 130:17-21

[DMs expected to give SMs verbal feedback regularly]; Ex. C, pp. 110:24-111:8 [during a “store 15 walk,” the DM and SM, and occasionally the associates, walk the store together ensuring it is

16 clean and products are set to the plan-o-gram]. Ex. B, pp. 110:17-22, 239:13-20; Ex. C, pp. 155:1-156:6 [uniform SM reviews]). The evaluation protocol for other in-store positions also

17 consistent (Ex. B, p. 239:13-16; Ex. C, pp. 147:7-9, 148:1-20 [SMs use same form to evaluate

AMs; DM then signs to ensure SM completed it properly]); Ex. F, pp. 122:14-123:1, 128:14-23. 18

19

42 Ex. B, pp. 141:21-142:15, 148:16-22, 153:17-19 [Reg. Dirs., Mrkt Mgrs, Reg. Training Mgrs, Asset Mgrs. and Zone VPs each conduct store visits between three and four days/week];

20 Ex. B, pp. 153:22-154:12 [Zone VP visits stores three to four days a week, looking at sales, store presentation, staff friendliness, safety, shrink programs and whether SMs are following
21 merchandising directions]; Ex. B, pp. 143:2-15, 144:11-145:5 [Asset Mgr. also conducts surprise

22

night visits weekly, during which he waits in the parking lot for the store to close to evaluate closing procedures]; Ex. C, p. 31:14-23 [Asset Mgr. conducts night visits]; Ex. B, p. 152:17-20

23 [Reg. Dir. visits may be surprise, which keeps SMs alert]; Ex. C, p. 14:10-15 [Reg. HR Mgr perform store audits]; Ex. C, pp. 15:15-16:11 [Reg. HR Mgrs. report non-compliance with
24 merchandising standards to DMs].

25 43

Ex. B, pp. 153:22-154:12 [Zone VP visits stores three to four days/week to examine sales

26 and sales trends, store presentation, customer service, safety, effectiveness of “shrink” programs, and whether SMs are following company merchandising directives]. Ex. F, pp. 127:21-128:5 [to

27 ensure DMs evaluate SMs consistently, SM evaluations are scrutinized at many levels].

28 44 Ex. F, pp. 17:24-18:11 [IT Help Desk (for SMs) maintained in Virginia].

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OAKLAND, CA 94612 TEL: (510) 891-9800

1 DMs45 and various upper management personnel.46

2

Finally, and not surprisingly for such a large chain retailer, Dollar Tree maintains an advanced

3 information technology system which permits the corporate office and/or local upper management

4 to monitor and control a multitude of daily operations47 in each retail store, right down to the music

5 played and store temperature.48 These systems watch point-of-sale data, inventory replenishment,

6 employee scheduling, breaks and time punches, basic HR functions and sales reporting. Through

7 this approach, Dollar Tree ensures that all retail stores function in a relatively-uniform manner.

8

9

3. Dollar Tree Endorses Uniform Treatment of All Class Members

10

Due to SMs’ occupational uniformity, Dollar Tree long ago elected to deprive these workers

11

12

13 45

Ex. E, pp. 20:8-12, 21:10-11 [aside from his physical visits to stores, deponent

14 communicates with SMs by e-mail, phone calls and SM meetings]. To further promote

consistency, DMs have regular telecoms with other DMs, Reg. Dirs. and/or other positions. Ex. 15 E, pp. 263:15-264:2) [DMs discuss sales, payroll, merchandise bulletins, HR, hiring, retaining,

16 MITs, people planner and operations objectives].

17 46 See, fn 16, supra [open door policy whereby all SMs can contact any level of upper

management to determine how to handle any situation]; Ex. C, p. 60:2-12 [Reg. Dirs. hold 18 monthly conference calls with DMs, HR, and Asset Mgrs. to discuss operational and HR issues];

19

Ex. D, p. 131:1-9 [SMs get feedback from various field positions, such as Asset Mgrs., HR Mgrs. and Reg. Dirs.]; Ex. E, p. 262:5-13 [DMs and Reg. Dir’s talk weekly]; Ex. E, p. 264:3-6

20 [regional weekly conference to discuss store sales, payroll and merchandising]).

21 47 Ex. A, pp. 6, 8; Register sales are transmitted in “real-time” to the home office so it can track sales immediately and constantly. The Reg. VP requires DMs to monitor sales and payroll
22 daily and weekly. (Ex. B, p. 151:4-10 [DMs can look at payroll, inventory and sales for any of 23 their stores.]; Finally, DMs can remotely monitor store ordering, completion of advertisement
purchasing, payroll levels and customer service scores daily; Ex. C, pp. 179:9-23, 181:8-10 [DM 24 “Dashboard” allows DM to monitor daily sales updates and inventory levels for any store]; Ex.
B, pp. 149:22-150:16, 151:12-14 [corporate office has real-time access to all stores’ sales, 25 including activity on the cash registers and tender type received]; Ex. B, pp. 150:20-151:4) 26 [payroll through COMPASS is available in a real-time manner to the corporate office].

27 48

Ex. B, pp. 156:9-16, 158:3-12 [SMs limited regarding the heating and music systems in

place.]; See, also, Ex. C, p. 135:9-18; Ex. C, pp. 136:22-137:11 [company dictates some scripts

28 of what should be announced over the P.A. system to advertise new products or promotions].

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OAKLAND, CA 94612 TEL: (510) 891-9800

1 of overtime pay, categorically holding them out as subject to the executive exemption.49 The

2 propriety of this decision is what Plaintiffs challenge through this litigation. While Dollar Tree is

3 expected to oppose class certification by arguing that SMs’ work is so individualized as to make it

4 impossible to meaningfully examine these employees as a group, this position ignores its own

5 conduct; indeed, so long as it remained convenient and profitable to do so, Dollar Tree endorsed the

6 use of a blanket classification of all SMs, never once suggesting these workers were anything but

7 a cohesive group, so homogeneous in their work duties that a singular classification was appropriate.

8 It cannot “have its cake and eat it too” by flipping its long-standing position now.

9

While Plaintiffs believe that Dollar Tree simply got it wrong (i.e., it mis-classified SMs),

10 Plaintiffs agree that uniform treatment of these employees is proper. In fact, Dollar Tree is so sure

11 of its SMs’ work consistency that, since 2005, it has required all SMs to complete a weekly

12 “Certification” report, wherein they must verify they are spending most, if not all, of their time

13 performing the items listed in their job description.50 Given the existence of this program51 and the

14 extraordinarily-high affirmative response rate to it by SMs, Dollar Tree cannot legitimately now

15 argue that SM work is so varied as to call into question the utility of class treatment.

16

For myriad reasons, this case is ideal for certification. Since Dollar Tree categorically exempts

17 all SMs from California’s overtime laws, each will make the same legal allegations and rely on a

18 core set of facts, the same witnesses and documents. This is precisely the type of case wherein “each

19 individual plaintiff would present, in duplicative proceedings, the same or essentially the same

20 arguments and evidence, including expert testimony,” and for which the California Supreme Court

21 has advocated class treatment. Sav-On Drug Stores, Inc. v. Superior Court, 34 Cal.4th 319, 340

22 23 49

Ex. F, p. 138:16-24 [SMs have always been overtime exempt].

24 50 Ex. F, pp. 134:25-135:2 [SMs fill out Certifications weekly]; Ex. B, pp. 250:18-251:7 [goal was to match Certification to job description]; Ex. C, p. 163:9-24; Ex. B, pp. 25:3-13,
25 27:19-28:7) [SM responsibilities unchanged]; Ex. C, p. 52:13-24 [SM position unchanged after 26 Certification process started]; Ex. C, p. 166:14-18 [Certification list exhaustive of what SMs do].

27 51

Dollar Tree’s use of a “Certification” process is instructive, insofar as it articulates, in

Dollar Tree’s own words, what all SMs are expected to do, and that Dollar Tree approves the use

28 of surveys to determine the propriety of its exemption defense.

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OAKLAND, CA 94612 TEL: (510) 891-9800

1 (2004); see also Wang v. Chinese Daily News, Inc., 231 F.R.D. 602, 608 (C.D.Cal. 2005).

2

3

4 III. LEGAL ARGUMENT

5

A. Standard for Class Certification

6

Federal Civil Procedure Rule 23 “provides district courts with broad discretion to determine

7 whether a class should be certified, and to revisit that certification throughout the legal proceedings

8 before the court.”52 Dukes v. Wal-Mart, Inc., 509 F.3d 1168, 1176 (9th Cir. 2007). Certification is

9 warranted when each of the four requirements of Rule 23(a) and at least one requirement of Rule

10 23(b) are met. Here, Plaintiffs move this Court under Rules 23(a) and 23(b)(3)53 for an Order

11 certifying a class of: All persons who were employed by Dollar Tree Stores, Inc. as California retail

12 Store Managers at any time on or after December 12, 2004.54

13

14 52 Although Courts advocate the use of the class action (See, e.g., Earley v. Super. Court, 79

Cal.App.4th 1420, 1434 (2000)), the Court retains the discretion to later decertify the class if 15 individual issues are found to predominate, or if it appears that a determination of damages

16 would be unmanageable. Rule 23(c)(1)(c) [providing that such orders “may be altered or amended before final judgment”]; Armstrong v. Davis, 275 F.3d 849, 872 n.28 (9th Cir. 2001)

17 [“district courts {have} broad discretion to determine whether a class should be certified, and to

revisit that certification throughout the legal proceedings before the court”]; 3 Newberg (4th ed.) 18 § 7:24 at 79; See also, O’Connor v. Boeing North American, Inc., 197 F.R.D. 404 (C.D.Cal.

19

2000). Moreover, although numerous and substantial common issues do exist here, “[e]ven if the common questions do not predominate over the individual questions ... Rule 23 authorizes the

20 district court in appropriate cases to isolate the common issues under Rule 23(c)(4)(A) and proceed with class treatment of these particular issues.” 2 Newberg (4th ed.) § 4:25 at 174;
21 Jenkins v. Raymark Indus., 782 F.2d 468, 472 (5th Cir. 1986).

22 53

Rule 23(b)(3) requires that common questions of law or fact predominate over individual

23 issues and that class resolution is superior to other available methods of adjudication.

24 54

Separate from the Rule 23(a) and (b) requirements, as a threshold analysis, the proposed

class must be ascertainable (i.e., be “a distinct group of plaintiffs whose members [can] be

25 identified with particularity.” Lerwill v. Inflight Motion Pictures, Inc., 582 F.2d 507, 512 (9th

26

Cir. 1978)). Class membership here is easily ascertainable through examination of payroll records which Dollar Tree, by law, is required to keep. Conversely, the class is not defined in

27 any way that would require liability adjudications before membership status can be determined, although even individualized showings as to “eligibility for recovery” do not render class

28 treatment inappropriate. Sav-On, 34 Cal.4th at 333; see also, Harper v. 24 Hour Fitness, Inc.,

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OAKLAND, CA 94612 TEL: (510) 891-9800

1

A motion for class certification is not an occasion for examination of the merits of the case.55

2 Moore v. Hughes Helicopters, Inc., 708 F.2d 475 (9th Cir. 1983); Jordan v. County of Los Angeles,

3 669 F.2d 1311 (9th Cir. 1982). “There is nothing in either the language or history of Rule 23 that

4 gives a court any authority to conduct a preliminary inquiry into the merits of a suit in order to

5 determine whether it may be maintained as a class action. . ..” Eisen v. Carlisle & Jacquelin, 417

6 U.S. 156, 177 (1974). Instead, to evaluate this motion, the Court need only determine if it satisfies

7 Rule 23, not weigh competing evidence. Staton v. Boeing Company, 327 F.3d 938 (9th Cir. 2003).

8

9

B. The Rule 23(a) Requirements Are Satisfied

10

1. The Proposed Class is Sufficiently Numerous

11

Numerosity does not require joinder of all members be impossible, only impracticable. Arnold

12 v. United Artists Theatre Circuit, Inc., 158 F.R.D. 439, 448 (N.D.Cal. 1994); Rule 23(a)(1); see also,

13 German v. Fed. Home Loan Mortg. Corp., 885 F. Supp. 537, 552 (S.D.N.Y. 1995) (“Impracticability

14 means difficulty or inconvenience of joinder; the rule does not require impossibility of joinder.”).

15 Evidence of exact class size is not required (1 Newberg [4th Ed.] § 3:5 at 233-35), nor is a specific

16 number of members;56 rather, impracticability depends on the facts of each case. General Tel. Co.

17 v. EEOC, 446 U.S. 318, 330 (1980). Here, joinder is impracticable.

18

19

20 167 Cal.App.4th 966 (2008); Bufil v. Dollar Financial Group, Inc., 162 Cal.App.4th 1193 (2008); Bell v. Farmers Ins. Exch., 115 Cal.App.4th 715, 744 (2004) [most class actions
21 contemplate the eventual individual proof of damages, which impliedly entails the potential that

22

some class members will have none]. As such, whether some SMs may, ultimately, be found exempt is not relevant now, so long as manageability tools exist with which to adjudicate that

23 issue later.

24 55 While the gravamen of Plaintiffs’ liability case is that Dollar Tree’s establishment of occupational uniformity strips SMs of nearly all discretion and independent judgment, Plaintiffs
25 concede that the correctness of this position has no bearing on the outcome of this motion.

26 56

“[T]he difficulty inherent in joining as few as 40 class members should raise a

27 presumption that joinder is impracticable, and the plaintiff whose class is that large or larger should meet the test of Rule 23(a)(1) on that fact alone.” 1 Newberg (4th ed.) § 3:5 at 246-7.

28 Here, the class is represented to be at least 655 members. Ex. P.

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OAKLAND, CA 94612 TEL: (510) 891-9800

1

2. The Class Representatives’ Claims Are Typical

2

Rule 23(a)(3) requires a showing of typicality, which the Ninth Circuit interprets permissively.

3 Hanlon v. Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir. 1998). Typicality requires that the named

4 plaintiffs be members of the class they represent and “possess the same interest and suffer the same

5 injury” as class members. General Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 156 (1982). The

6 named plaintiffs’ claims need not be identical to the claims of the class to satisfy typicality; rather,

7 the claims are typical if they are “reasonably co-extensive with those of absent class members.”

8 Hanlon, 150 F.3d at 1020. It is sufficient for plaintiffs’ claims to “arise from the same remedial and

9 legal theories” as the class claims. Arnold, 158 F.R.D. at 449; California Rural Legal Assistance v.

10 Legal Services Corp., 917 F.2d 1171, 1175 (9th Cir. 1990) (class representatives and members of

11 the class need only “share a common issue of law or fact”). Given that the proposed class

12 representatives possess the same interests, and allege violations impacting other SMs, the typicality

13 requirement is met.57

14

15

3. The Proposed Class Representative Will Adequately Represent the Class

16

Since the proposed representatives have no conflicts of interest with the proposed class and

17 are represented by qualified counsel, Rule 23(a)(4)’s adequacy requirement is met. Walters v. Reno,

18 145 F.3d 1032, 1046 (9th Cir. 1998); Lerwill, 582 F.2d at 512. Mere divergence of opinion between

19 the class and its representative is not sufficient. In re Mego Fin. Corp. Sec. Litig., 213 F.3d 454, 462

20 (9th Cir. 2000). In this case, there is no evidence of antagonism between the proposed

21 representatives, or their attorneys, and the putative class and, even if there were, any SM who wishes

22 to opt out will be afforded that opportunity. Moreover, Plaintiffs’ attorneys are very experienced

23 class action litigators, devoted almost exclusively to the prosecution of overtime class actions.

24 Finally, Plaintiffs and their counsel are willing to pursue this action vigorously on behalf of the

25 class, as they have done so to date.58

26 27 57

Declaration of Molly Kuehn (“Kuehn Decl.”), ¶ 18; Exs. P-II [SM declarations].

28 58 Cole Decl. ¶¶ 19-20; Ex. Q.

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OAKLAND, CA 94612 TEL: (510) 891-9800

1

C. The Common Question Standards of Rule 23(a)(2) and 23(b)(3) Are Satisfied

2

1. The Commonality Standard(s)

3

Plaintiffs move this Court for an Order certifying this case as a class action under Fed. R. Civ.

4 P. 23(a) and 23(b)(3). Rule 23(a)(2) requires the Court find that questions of law or fact common

5 to the class exist, a standard widely held to be construed “permissively” (Hanlon, 150 F.3d at 1019),

6 with even “one significant issue common to the class [being] sufficient to warrant certification.”

7 Dukes, 509 F.3d at 1177.59 Moreover, class certification under Rule 23(b)(3) is satisfied if:

8

the court finds that the questions of law or fact common to class

members predominate over any questions affecting only individual

9

members, and that a class action is superior to other available

methods for fairly and efficiently adjudicating the controversy.

10

11

“Rule 23(b)(3) focuses on the relationship between common and individual issues.” Wang,

12 231 F.R.D. at 613 [finding common questions of law and fact to predominate in an overtime

13 misclassification case]; see also, Mullen v Treasure Chest Casino, LLC, 186 F.3d 620, 627 (5th Cir.

14 1999) (predominance is determined not by counting the number of common issues, but by weighing

15 their significance). As explained in Newberg’s treatise, while the meaning of “predominance” has

16 remained enigmatic, “[m]ost courts have agreed on what the predominance test does not entail.” 2

17 Newberg (4th ed.) § 4:25 at 169. Specifically, as Professor Newberg explains:

18

The test was not meant to require that the common issues will be dispositive of the

controversy or even be determinative of the liability issues involved. ... In addition,

19

the predominance requirement is not a numerical test that identifies every issue in

the suit as suitable for either common or individual treatment and determines

20

whether common questions predominate by examining the resulting balance on the

scale. A single common issue may be the overriding one in the litigation, despite the

21

fact that the suit also entails numerous remaining individual questions. ... In finding

that common questions do predominate over individual ones in particular cases,

22

courts have pointed to such issues that possess the common nucleus of facts for all

related questions, have spoken of a common issue as the central or overriding

23

question, or have used similar articulations. ... Implicit in all these articulations of

satisfaction of the predominance test is the notion that adjudication of the common

24

issues of the particular suit has important and desirable advantages of judicial

economy compared to all other issues, or when viewed by themselves. 2 Newberg

25

26 59

Parra v. Bashas’, Inc., 536 F.3d 975, 978-79 (9th Cir. 2008) (“Where the circumstances

27 of each particular class member vary but retain a common core of factual or legal issues with the rest of the class, commonality exists.”). Indeed, the Ninth Circuit considers the requirements for

28 finding commonality under Rule 23(a)(2) to be “minimal.” Hanlon, 150 F.3d at 1020.

- 16 Plaintiffs’ Amended Notice of Motion and Amended Motion for Class Certification

Case3:07-cv-04012-SC Document124 Filed03/25/09 Page23 of 31

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ATTORNEYS AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR
OAKLAND, CA 94612 TEL: (510) 891-9800

1

(4th ed.) § 4:25.

2 In the overtime exemption context, the predominance of common issues has been frequently
3 expressed. In such cases, “[w]here . . . the “predominate issue in dispute is whether the various tasks
4 in which [class members] actually engaged should be classified as exempt or non-exempt,” common
5 questions are likely to predominate. Sav-On, 34 Cal.4th at 330-31. Specifically, as Sav-On
6 explained, it is sufficient, for class treatment, that plaintiffs show either the likelihood of a
7 standardized or uniform policy of deliberate misclassification or simply that the defendant’s uniform
8 practices likely led to widespread de facto misclassification. Sav-On, 34 Cal.4th at 329;60 See also,
9 Wang, 231 F.R.D. at 614 (“Defendant cannot, on the one hand, argue that all [class members] are
10 exempt from overtime wages and, on the other hand, argue that the Court must inquire into the job
11 duties of each [class member] in order to determine whether that individual is exempt. . . Plaintiffs
12 are challenging Defendant’s policy of classifying [class members] as ‘exempt.’”) (emphasis in
13 original). Here, the questions of law are completely common, and questions of common fact have
14 already been framed for adjudication by Dollar Tree’s own chain retailing policies and procedures.
15

16 2. All Class Claims Share the Same Questions of Law
17 The class members do not simply share some common legal issues; they share them all.
18 Indeed, the legal theories advanced by each claimant are identical – a point that weighs heavily in
19 favor of granting this motion. Whereas the common question of defendant’s liability, vis-à-vis a
20 determination of the exempt/non-exempt character of SMs’ job duties, will be a dominant issue at
21 trial, the numerous legal determinations which naturally flow therefrom are equally common. For
22

23

24 60

In Sav-On, the California Supreme Court expressly endorsed the use of the class action

procedure in wage and hour cases, reasoning that, because there exists a “clear public policy ...

25 that is specifically directed at the enforcement of California’s minimum wage and overtime laws

26

for the benefit of workers,” (Sav-On, 34 Cal.4th at 340) the class action device should be used to enforce these laws wherever this device “would be the most efficient way of adjudicating the

27 class members overtime claims.” Id., at 330. In that situation, the court should consider only, as an analytical matter, whether the theory of recovery advanced by the proponents of certification

28 is amenable to class treatment. Id., at 327.

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1 example, if SMs’ entitlement to overtime pay is proven, class-wide determinations regarding SMs’

2 entitlement to meal and rest periods (see, Cal. Labor Code § 226.7, 512), restitution under Cal. Bus.

3 & Prof. Code § 17200, et seq., and injunctive relief, the adequacy of Dollar Tree’s record-keeping

4 and payroll deduction statement practices (see, Cal. Labor Code § 226), and whether a “good faith”

5 dispute (so as to avoid Cal. Labor Code § 203 “waiting time” penalties) exists will be necessary.

6 There is no good reason to resolve these secondary issues seriatim for hundreds of individual SMs.

7

8

3. Common Questions of Fact Predominate

9

In evaluating the utility of class treatment, the Court must also examine whether questions of

10 fact common to class members predominate over questions affecting only individual members. Here,

11 the “one size fits all”61 nature of the SM job and Dollar Tree’s resultant policy of categorically

12 treating (and taking of steps to confirm) all SMs as overtime-exempt (i.e., not based upon any

13 individual analysis),62 literally begs for class treatment of these workers’ claims.

14

15

a. Dollar Tree’s Certification Process Ensures SM Conformity

16

Dollar Tree goes to great lengths to bombard SMs with communications concerning the

17 routinization of their job duties. Unlike other chain retailers that simply adopt uniform policies and

18 procedures and then trust that they are followed with precision, Dollar Tree also insists that SMs

19 certify weekly that the expected tasks are being performed and in the expected frequency, which

20 further serves to micro manage their work. Since Dollar Tree cannot directly observe California SMs

21

22 61

Plaintiffs do not suggest that SMs’ work will be identical from day to day or even from

23 SM to SM. The commonality here is what tasks SMs do, the resources they use to do it, the environment within which they do it, and the directives from Dollar Tree’s corporate office; the

24 fact that a SM may primarily perform “ordering” functions one day, and “receiving” duties the

next, is of no consequence. All SMs order and receive product in varying degrees, and the impact 25 that this has on liability (i.e., how often they do these tasks) is a question for another day.

26 62

Ex. B, p. 269:6-20 [Dollar Tree does not evaluate, on a weekly basis, whether SMs

27 should be paid as hourly employees, even when a SM “certifies” the mix of work tasks renders him/her non-exempt.]. This is all despite the fact that the person in the best position to explain

28 what a particular SM is doing would, admittedly, be that SM. (Ex. B, pp. 269:21-270:3).

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1 from a vantage point in Virginia, confirmation that its policies and procedures are being followed

2 homogenizes the SM position and, by extension, the look, feel and success of every store.63

3

Saying that the Certification process is calculated to ensure this uniformity is not just

4 advocacy; Dollar Tree admits it. Dollar Tree intended for the Certification’s language to track that

5 of the job description, which becomes obvious upon their comparison. Moreover, so that SMs would

6 be completely clear about what they were certifying, Dollar Tree held meetings with SMs across

7 California to describe the process and field questions when the Certification process was rolled out.64

8 Today, if a SM fails to submit a Certification for a given week, HR makes contact to find out why.65

9 If any SM’s work deviates from the norm, steps are taken to get his work back on track. Indeed, to

10 argue now that SM’s work is more random simply defies credibility. Wang, 231 F.R.D. at 608-09.

11

12

b. How Much Time Managers Spend on Any Work Task Is Presently Irrelevant

13

In this motion, Plaintiffs do not seek a liability determination or to challenge Defendant’s

14 likely argument that variations exist in the mix of actual work activities undertaken by individual

15 class members or the amount of time spent from one day to the next on these tasks. Indeed, it is of

16

17
63
18

Ex. B, p. 165:22-166:21 [SMs’ duties/responsibilities are about the same in all states].

64 Ex. B, pp. 253:17-254:10 [Q&A sessions held with all SMs regarding Certification 19 process]; Ex. C, pp. 157:11-158:19 [two So. Cal. meetings with SMs to introduce Certification

20 procedures]; Ex. F, pp. 130:17-20, 132:7-133:24 [two meetings where SMs asked questions about Certification process; 3+ hour meeting in Sacramento].

21 65 Ex. B, pp. 251:12-18, 259:8-13; Ex. F, pp. 135:3-12, 136:11-14 [if a SM checks “no” on
22 the certification, Candace Camp typically has a phone conversation with David McDearmon

23

[Director of Field HR] and the SM to go over the SM’s explanation and turn it into a “yes”]; Ex. B, pp. 115:12-20, 166:18-167:11 [that SMs are following the job description is reinforced

24 through the regional management team, including Reg. Dirs. and DMs]; Ex. C, p. 176:5-9 [SMs never get paid overtime, even if they check “no” for a given week]. What this shows is that
25 Dollar Tree could not care less what answer SMs put on the Certification form; Dollar Tree is

26

confident it already knows what SMs do, categorically, and it believes that the work is exempt, an expectation which creates a common issue for trial. Accord, Ex. F, p. 143:7-20. What this

27 also shows is that Dollar Tree endorses class-wide treatment of SMs without the need for an “individual inquiry” into the nature of their work. Defendant cannot now convincingly argue that

28 the information and assumptions upon which it decided to exempt SMs were inadequate.

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OAKLAND, CA 94612 TEL: (510) 891-9800

1 no consequence to admit that some degree of uniqueness exists between any two people holding any

2 singular job position.66 Certification of a worker class does not demand complete uniformity at levels

3 of minutia – only that the common issues predominate in their importance to the overall dispute.

4

Although Dollar Tree will likely oppose this motion by irrelevant references to the various

5 nuances that impact the amount of time spent on particular tasks, it cannot have it both ways by

6 homogenizing its policies and procedures and endorsing a blanket exemption of SMs, and then

7 opposing class certification by denouncing the use of representational evidence. Wang, 231 F.R.D.

8 at 614 [explaining the inconsistency of this approach in the context of an overtime exemption case].

9

While certainly not the first lawsuit wherein certification was approved,67 Wang presents a

10 robust and instructive list of the common factual issues present in cases such as this. Indeed, the

11 common factors which predominated in Wang also predominate here. They are whether:

12

(1) Defendant has a uniform policy of unlawfully treating certain classifications of

employees as “exempt”; (2) Defendant conducted an appropriate investigation to support a

13

good faith defense of this policy; (3) Defendant failed to pay overtime compensation to non-

exempt employees; (4) Defendant deprived employees of meal and rest breaks and failed to

14

pay appropriate penalties for missed breaks; (5) Defendant failed to keep accurate records

of hours worked68; (6) Defendant failed to provide accurate itemized wage statements to

15

employees; (7) Defendant failed to pay all wages due to employees at the time that their

employment was terminated. Additional questions of fact include: (8) class members receive

16

their pay through a common compensation program or payroll system; (9) Defendant

performed studies to determine the amount of hours its employees actually spent on exempt

17

versus non-exempt work; and (10) Defendant has centralized oversight and supervision of

its employees. A common inquiry is the most efficient and appropriate way to answer these

18

questions. Most differences among putative class members, such as the amount of overtime

premium pay owed or the number of breaks that have been missed, affect damages, not

19

Defendant’s liability. Wang, 231 F.R.D. at 612-13 (numbering, footnotes and emphasis

added).

20

Here, however, the list continues, and includes common issues such as whether Defendant

21

acted in good faith (Cal. Labor Code § 203) in classifying SMs as exempt, whether punitive

22

23 66

“[N]either variation in the mix of actual work activities undertaken during the class

24 period by individual [class members], nor differences in the total unpaid overtime compensation

25 owed each class member, bars class certification as a matter of law.” Sav-On, 34 Cal.4th at 335.

67
26

This preponderance of common issues on similar facts is why this matter is hardly the

first retail manager case to achieve certification status. See, Kuehn Decl. ¶¶ 3-17; Exs. A-O.

27 68

Ex. C, pp. 183:3-22, 184:3-16 [no requirement to track hours or meal/rest breaks]; Ex. B,

28 p. 271:7-9 [SMs do not record hours actually worked].

- 20 Plaintiffs’ Amended Notice of Motion and Amended Motion for Class Certification

Case3:07-cv-04012-SC Document124 Filed03/25/09 Page27 of 31

SCOTT COLE & ASSOCIATES, APC
ATTORNEYS AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR
OAKLAND, CA 94612 TEL: (510) 891-9800

1 damages are recoverable and whether Dollar Tree engaged in an unfair business practice (Cal. Bus.

2 & Prof. Code § 17200). Thus, the most substantial69 questions would be decided at the class-wide

3 liability trial, leaving discrete questions addressing how much time each SM spent on common tasks

4 and damages to be determined on an individual, yet substantially-streamlined, basis.70, 71

5

6

D. A Class Action Is the Superior Method of Adjudicating These Claims

7

The superiority of class treatment to other available methods of litigating these claims is clear.

8 As courts considering the complexity of overtime cases have previously observed:

9

[a]bsent class treatment, each individual plaintiff would present in separate, duplicative

proceedings the same or essentially the same arguments and evidence, including expert

10

11 69 See, e.g., Kuehn Decl. ¶14; Ex. L, p. 8:2-5] [“If the common questions ‘present a
12 significant aspect of the case and they can be resolved for all members of the class in a single 13 adjudication, there is clear justification for handling the dispute on a representative rather than
on an individual basis ’” Hanlon, 150 F.3d at 1022 (citation omitted).”] Morever, as noted supra, 14 even the amount of time each employee spends on work tasks presents an opportunity for
resolution through the use of common tools. 15
70 Since potential individual issues do not predominate, the common questions before this 16 Court may be preliminarily determined. Individual issues requiring that each class member 17 individually establish his/her eligibility to make a claim or their specific damages do not render
class treatment inappropriate as long as these issues may be effectively managed. Sav-On, 34 18 Cal.4th at 334-335; Employment Dev. Dept. v. Superior Court, 30 Cal.3d 256, 266 (1981); See
also, B.W.I. Custom Kitchens v. Owens-Illinois, Inc., 191 Cal.App.3d 1341, 1354 (1987) (the 19 appropriate method to determine class members’ damages “need not be resolved until the 20 class-wide issues have been determined”). In any event, individual damages can be determined
through well-established, efficient and easily-managed procedures, including, for example, the 21 use of questionnaires, surveys or representative sampling and testimony. See, e.g., Bell, 115
Cal.App.4th at 750 (approving use of statistical sampling in a class action stating that it “does 22 not dispense with proof of damages but rather offers a different method of proof”).

23 71

Not only do individual issues regarding each class member’s specific amount of damages

24 not render class treatment inappropriate, the correct formula for determining wages due presents yet another class-wide issue for determination. Such formulaic approaches have been found
25 particularly useful where, as here, defendant’s lack of records would make reconstructing the

26

precise number of hours worked a cumbersome process. (See, e.g., Stewart v. General Motors Corp., 542 F.2d 445, 452-53 (7th Cir, 1976); EEOC v. O & G Spring & Wire Forms Spec. Co.,

27 38 F.3d 872, 876 (7th Cir. 1994) and accepted by the Ninth Circuit (Hilao v. Estate of Marcos, 103 F.3d 767, 782-87 (9th Cir. 1996); Domingo v. New England Fish Co., 727 F.2d 1429, 1444-

28 45 (9th Cir. 1984)).

- 21 Plaintiffs’ Amended Notice of Motion and Amended Motion for Class Certification

Case3:07-cv-04012-SC Document124 Filed03/25/09 Page28 of 31

SCOTT COLE & ASSOCIATES, APC
ATTORNEYS AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR
OAKLAND, CA 94612 TEL: (510) 891-9800

1

testimony. The result would be a multiplicity of trials conducted at enormous expense to

both the judicial system and the litigants. “It would be neither efficient nor fair to anyone,

2

including defendants, to force multiple trials to hear the same evidence and decide the same

issues.” Sav-On, 34 Cal.4th at 340 (citing Boggs v. Divested Atomic Corp., 141 F.R.D. 58,

3

67 (S.D.Ohio 1991).

4

It would be far more costly and time consuming for each individual class member separately

5 to seek and compel discovery of Defendant’s policies and procedures, take multiple depositions to

6 discover Defendant’s reasons for exempting the SM position from overtime, retain a multitude of

7 different experts to analyze such information for each individual case, and otherwise litigate

8 numerous issues concerning entitlement to various kinds of damages and penalties than it would be

9 to adjudicate all claims within the already-pending action. Moreover, separate lawsuits would

10 require analysis of the same core evidence by a multitude of courts and juries. Finally, the disparity

11 in resources between class members and an extraordinarily-large private employer such as Dollar

12 Tree could easily intimidate and dissuade potential plaintiffs from proceeding individually.72

13

If there was ever uncertainty over the superiority of the class action vehicle in the employment

14 law arena, the California Supreme Court’s decision in Gentry v. Superior Court73 has erased such

15 doubts. Indeed, in Gentry, the Court held there is, sometimes, justification for class certification even

16 in cases where certain statutory requirements for certification are “otherwise questionable.” Without

17 a doubt, Defendant will vigorously contest liability, meaning that, without certification, the

18 multiplicity of trials will result in an enormous waste of judicial and party resources. In the end, as

19

72
20

“[I]t is no accident that ‘wage and hour disputes...routinely proceed as class actions.’”

Ghazaryan v. Diva Limousine, Ltd., 169 Cal.App.4th 1524, 1538 (2008), citing Prince v. CLS

21 Transportation, Inc., 118 Cal.App.4th 1320, 1328 (2004); Sav-On, 34 Cal.4th at 340; Kuehn

Decl. ¶16; Ex. N, p. 15:11-13 [“A class action is superior to multiple individual lawsuits. The 22 needless expenditure of additional time, effort and money that would be attendant to numerous

23 individual suits is greatly reduced, and the potential for differing outcomes is avoided as well.”].

24 73

Gentry v. Superior Court, 42 Cal.4th 443 (2007) [summarizing the policy considerations

favoring class action usage, to wit: (1) individual awards in such cases tend to be modest so the

25 availability of class action claims play “an important function by permitting employees a

26

relatively inexpensive way to resolve their disputes,” (2) the class action vehicle allows many employees, whom may not otherwise file an individual suit due to fear of retaliation, to safely

27 have their day in court as a member of the class, and (3) class actions serve to inform and protect employees who, for one reason or another, may not otherwise become aware that their rights are

28 even being violated]; See also, Ghazaryan, 169 Cal.App.4th 1524 (2008).

- 22 Plaintiffs’ Amended Notice of Motion and Amended Motion for Class Certification

Case3:07-cv-04012-SC Document124 Filed03/25/09 Page29 of 31

SCOTT COLE & ASSOCIATES, APC
ATTORNEYS AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR
OAKLAND, CA 94612 TEL: (510) 891-9800

1 a practical matter, the only alternatives to certifying this class are to force hundreds of current and

2 former SMs to file individual actions or abandon their rights altogether.

3

4

E. Class Certification Permits Use of a Streamlined Trial Plan

5

Individual issues requiring each SM establish his/her right to recover do not render class

6 treatment inappropriate as long as they may be effectively managed. Wang, 231 F.R.D. at 613, citing

7 Blackie v. Barrack, 524 F.2d 891, 905 (9th Cir. 1975); Sav-On, 34 Cal.4th at 334-35; B.W.I. Custom

8 Kitchens, 191 Cal.App.3d at 1354 [the appropriate method to determine class members’ damages

9 “need not be resolved until the class-wide issues have been determined.”]. Moreover, the existence

10 and/or amount of individual damages can be formulaically-addressed74 at trial through

11 well-established and efficient procedures, such as the use of questionnaires, surveys or

12 representative testimony. Bell, 115 Cal.App.4th 715. For these reasons, the presence of individual

13 damages issues does not undermine the common-sense conclusion that resolution of hundreds of

14 claims at once substantially promotes judicial economy, particularly when a plethora of innovative

15 tools are available to the parties. Indeed, as the Sav-On Court noted:

16

For decades “[t]his court has urged trial courts to be procedurally innovative” in managing

class actions, and “the trial court has an obligation to consider the use of ... innovative

17

procedural tools proposed by a party to certify a manageable class” Sav-On, 34 Cal.4th at

339.

18

19

Such “innovative procedural tools” can take on many appearances75 and, obviously, a trial

20

21 74 Not only do individual issues regarding each class member’s specific amount of damages not render class treatment inappropriate, the correct formula for determining back wages due
22 presents yet another class-wide issue for determination. Such formulaic distributions of back pay 23 have been found particularly useful where, as here, Defendant’s lack of adequate records would
make any attempt at reconstructing the precise number of hours worked by affected employees a 24 cumbersome process, to say the least. Formulaic distributions of back pay have been successfully
used in other actions. See, e.g., Pettway v. American Cast Iron Pipe Co., 494 F.2d 211, 261 (5th 25 Cir. 1974); Domingo, 727 F.2d at 1444-45. Moreover, such an approach is similar to that 26 accepted by the Ninth Circuit in Hilao, 103 F.3d at 782-87; 4 Newberg (4th ed.) § 9:63 at 451.

27 75

Here, these issues may be addressed using surveys/questionnaires, statistical evidence,

exemplar plaintiffs, separate judicial or administrative mini-proceedings, expert testimony,

28 and/or other descriptors of Defendant’s centralized practices, each of which has been adopted

- 23 Plaintiffs’ Amended Notice of Motion and Amended Motion for Class Certification

Case3:07-cv-04012-SC Document124 Filed03/25/09 Page30 of 31

SCOTT COLE & ASSOCIATES, APC
ATTORNEYS AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR
OAKLAND, CA 94612 TEL: (510) 891-9800

1 plan specifically tailored toward the particular litigation has the best chance of achieving the desired

2 effect. While the Court has the discretion to use any plan it sees fit, a bifurcated approach could

3 effectively manage all common and individual issues. Specifically, in Phase I thereof, the Court

4 would adjudicate the exempt/non-exempt character of each of the job position’s duties, just once,

5 for all class members; in Phase II, each member (or a sampling) of the class would identify the

6 percentage of time spent thereby on each task/task group,76 and then state the total number of

7 overtime hours worked. Through this approach, Phase II would account for any possible variations

8 between SM experiences due to varying store sizes, sales volume and the like.77 Without suggesting

9 that these common factors are exhaustive, Plaintiffs propose that trial be conducted as follows:

10

11

Phase I (Common Issues):

12

Questions common to all SMs (and which dispose of the named plaintiffs’ claims) include:

13 • Which SM duties (hereinafter, the “Task List”) are legally exempt under California law?;

14 • 15

Did Defendant violate Cal. Labor Code §§ 226.7 and/or 512 by failing to provide meal and/or rest periods to SMs?;

16

17 successfully in prior matters. See, O’Connor v. Boeing North American, Inc., 184 F.R.D. 311

(C.D.Cal. 1998) (questionnaire); McLaughlin v. Ho Fat Seto, 850 F.2d 586 (9th Cir. 1988) 18 (exemplar plaintiffs); Deskbook on the Management of Complex Civil Litigation § 2.61(3);

19

Manual for Complex Litigation (2008) § 11.493 (exemplar plaintiffs); Labor/Community Strategy Ctr. v. L.A. County Metro. Transp. Auth., 263 F.3d 1041 (9th Cir. 2001) (Special

20 Master); Rule 23(c)(4)(B) (subclasses). Indeed, due process objections to handling individual damages issues via such approaches are unpersuasive. Day v. NLO, 851 F.Supp. 869, 876
21 (S.D.Ohio 1994) [Such devices permit defendants to “present their opposition, and to raise

22 certain affirmative defenses”]; Sav-On, 34 Cal.4th at 339-40.

76
23

“[T]he fact is the tasks discussed in both defendant’s and plaintiffs’ submissions

comprise a reasonably definite and finite list. ... This is an issue [whether work tasks are

24 ‘managerial’ or ‘non-managerial]’ that can easily be resolved on a class-wide basis by assigning

each task to one side of the ‘ledger’ and makes the manageability of the case not the daunting 25 task Defendant has sought to portray.” Sav-On, 34 Cal.4th at 331.

26 77

Any variances in SMs’ work merely impact the amount of time spent on certain tasks, not

27 the task list itself; Phase II’s checklist-type approach addresses these variances. See, Day, 851 F.Supp. at 876 [such devices permit defendants to “present their opposition, and to raise certain

28 affirmative defenses.”]; Sav-On, 34 Cal.4th at 339-40.

- 24 Plaintiffs’ Amended Notice of Motion and Amended Motion for Class Certification

Case3:07-cv-04012-SC Document124 Filed03/25/09 Page31 of 31

SCOTT COLE & ASSOCIATES, APC
ATTORNEYS AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR
OAKLAND, CA 94612 TEL: (510) 891-9800

1 • Was Dollar Tree’s conduct arbitrary, unreasonable and/or in bad faith (for purposes of determining “waiting time” penalties under Cal. Labor Code § 203)?;
2 • Did Defendant violate Cal. Labor Code § 1174 by failing to record SMs’ hours of work?;
3 • Are SMs entitled to an award of punitive damages and, if so, in what amount?;
4 • Is injunctive relief appropriate and, if so, in what form?
5 If Plaintiffs prevail in Phase I, a “ledger”-type trial tool could be developed to allow SMs to
6 report the amount of time spent performing each task, a process that would thereby answer the
7 question (employing remedial arithmetic) of which SMs are entitled to overtime pay.
8

9 Phase II (Individual Issues):
10 Phase II could be held either immediately after the conclusion of Phase I or following an
11 additional round of discovery. Phase II would determine the number of overtime hours worked,
12 missed meal/rest periods, amount of penalties due and the time spent on each task/task group, an
13 approach not dissimilar from that discussed by the Sav-On Court as being useful in that similar chain
14 retailing scenario. Here, common trial tools, such as the use of a Special Master or a survey, would
15 likely be most useful. Through this phased trial plan, common and individual issues would be
16 addressed in one highly-streamlined proceeding -- and the logic of that is undeniable.
17

18 IV. CONCLUSION
19 Rule 23 was designed to prevent repetitious litigation and to allow courts to manage cases on
20 a representative basis. The class here meets all the requirements of Rule 23(a) and 23(b)(3) in
21 multiple respects. Accordingly, Plaintiffs respectfully request this Court enter the [proposed] Order.
22

23 Dated: March 25, 2009
24

Respectfully Submitted,

25

SCOTT COLE & ASSOCIATES, APC

26

By: /s/ Scott Edward Cole

27

Scott Edward Cole, Esq. Attorneys for Representative Plaintiffs

28

and the putative Plaintiff Class

- 25 Plaintiffs’ Amended Notice of Motion and Amended Motion for Class Certification

 
 Case3:07-cv-02050-SC Document107 Filed05/26/09 Page1 of 26

United States District Court
For the Northern District of California

1

2

3 UNITED STATES DISTRICT COURT
4 NORTHERN DISTRICT OF CALIFORNIA
5

6 MIGUEL A. CRUZ, and JOHN D. HANSEN,) Case Nos. 07-2050 SC

individually and on behalf of all )

07-4012 SC

7 others similarly situated,

)

)

8

Plaintiffs,

) ORDER GRANTING

) AMENDED MOTION FOR

9

v.

) CLASS CERTIFICATION

)

10 DOLLAR TREE STORES, INC.,

)

)

11

Defendant.

)

___________________________________)

12

)

ROBERT RUNNINGS, individually, and )

13 on behalf of all others similarly )

situated,

)

14

Plaintiffs,

)

)

15

v.

)

)

16 DOLLAR TREE STORES, INC.,

)

)

17

Defendant.

)

)

18

)

19 I. INTRODUCTION

20

This matter comes before the Court on the Amended Motion for

21 Class Certification ("Motion") file by Plaintiffs Robert Runnings,

22 Miguel Cruz, and John Hansen (collectively "Plaintiffs"). Docket

23 No. 124.1 Defendant Dollar Tree ("Defendant" or "Dollar Tree")

24 filed an Opposition, and Plaintiffs filed a Reply. Docket Nos.

25 151, 162. For the following reasons, the Motion is GRANTED.

26

27 1 Unless otherwise noted, all docket numbers refer to entries
28 in Case No. 07-4012.

Case3:07-cv-02050-SC Document107 Filed05/26/09 Page2 of 26

United States District Court
For the Northern District of California

1 II. BACKGROUND

2

A. Procedural Background

3

Miguel Cruz ("Cruz") and John Hansen ("Hansen"), on behalf of

4 themselves and all others similarly situated, filed a class action

5 against Dollar Tree, alleging that they were improperly classified

6 as exempt managers and denied wages for overtime. First Am.

7 Compl., Cruz Docket No. 1.2 Robert Runnings ("Runnings") filed a

8 substantially similar class action in California Superior Court,

9 which Dollar Tree removed to this Court. Notice of Removal,

10 Docket No. 1. On August 30, 2007, the Court signed a Related Case

11 Order after finding that the two cases were similar. Cruz Docket

12 No. 34; Docket No. 21. On November 20, 2007, the Court signed a

13 Joint Stipulation and Proposed Order for Consolidation of Actions

14 signed by counsel for Cruz, Hansen, Dollar Tree, and Runnings.

15 Cruz Docket No. 45; Docket No. 33.

16

Pursuant to Federal Rule of Civil Procedure 23, Plaintiffs

17 move for an order certifying the following class: "All persons who

18 were employed by Dollar Tree Stores, Inc. as California retail

19 Store Managers at any time on or after December 12, 2004." Mot.

20 at 13 (italics omitted). Starting the class period from December

21 12, 2004, ensures that any eventual awards to Dollar Tree Store

22 Managers ("SMs") in this case will not overlap with the awards

23

24

2 As well as state law causes of action, the Amended Complaint

filed by Cruz and Hansen also claims that Dollar Tree's failure to 25 pay overtime wages violated the Fair Labor Standards Act ("FLSA"),

29 U.S.C. § 207. First Am Compl. ¶¶ 96-104. This motion does not 26 concern the FLSA claim, which requires individual consent, and

cannot be litigated pursuant to Rule 23. See Wang v. Chinese Daily 27 News, Inc., 231 F.R.D. 602, 605 (C.D. Cal. 2005).

28

2

Case3:07-cv-02050-SC Document107 Filed05/26/09 Page3 of 26

United States District Court
For the Northern District of California

1 that resulted from a previous settlement. See McDearmon Decl. ¶

2 3; Ex. A ("Settlement Agreement").3 Plaintiffs allege the class

3 consists of at least 655 members. Mot. at 14 n.56. Defendant

4 contends that the number is likely to be less, and that there are

5 currently 273 SMs in California. Opp'n at 1 n.5.

6

B. Factual Background

7

Dollar Tree operates discount variety stores offering

8 merchandise at the fixed price of $1.00. Cole Decl. Ex. A

9 ("Dollar Tree Annual Report") at 6.4 Dollar Tree operates

10 approximately 3411 stores nationwide. Id. at 13. Dollar Tree

11 currently has 273 stores in California. McDearmon Decl. ¶ 10.

12 Dollar Tree's goal is for each store to have one SM. Id. Ex. B

13 ("Hensley Dep.") at 18:22-19:4; McDearmon Decl. ¶ 10. At the

14 lowest level of Dollar Tree's employment hierarchy are Sales

15 Associates, often employed on a part-time basis, who engage in

16 cashiering, freight receipt, stocking, cleaning, and restoring

17 merchandise to shelves. Cole Decl. Ex. C. ("Balderas Dep.") at

18 57:1-58:25;5 McDearmon Decl. ¶ 10. The next store position is

19 that of an Assistant Manager, who tends to specialize in freight,

20 merchandising, front end work, and operations. McDearmon Decl. ¶

21

22

3 David McDearmon, Dollar Tree's Director of Human Resources,

Field Operations, filed a declaration in support of Dollar Tree's 23 Opposition. Docket No. 144.

24

4 Scott Edward Cole, an attorney and Principal of Scott Cole &

Associates, filed a declaration in support of the Motion. Docket 25 No. 126.

26

5 Reed Balderas is Dollar Tree's Regional Human Resources

Manager for Southern California and Las Vegas. Balderas Dep. at 27 6:4-11.

28

3

Case3:07-cv-02050-SC Document107 Filed05/26/09 Page4 of 26

United States District Court
For the Northern District of California

1 10. The Assistant Managers report to the SM. Id. SMs report to

2 a District Manager, who generally oversees eight to fifteen

3 stores. Id. District Managers report to a Regional Director, who

4 has responsibility for six to nine districts. Id. Regional

5 Directors report to a Zone Vice-President. Id. California

6 consists of thirty districts, and four regions. Id. The Zone

7 Vice-President for California has responsibilities for a zone that

8 extends beyond California. Id.

9

In early 2005, Dollar Tree settled pending lawsuits that

10 alleged it improperly classified SMs, Assistant Store Managers,

11 and Managers in Training as exempt from overtime compensation.

12 McDearmon Decl. ¶ 3; Settlement Agreement. The settlement was

13 anticipated to provide $125 per workweek to SMs during the period

14 for January 1, 1999, through December 11, 2004. Settlement

15 Agreement at 4. After the settlement, Dollar Tree reclassified

16 Assistant Store Managers and Managers in Training as nonexempt

17 positions. McDearmon Decl. ¶ 4. Dollar Tree revised the SM job

18 description. Id. SMs in California are now required to spend the

19 majority of their actual work time performing the following duties

20 and responsibilities:

21

1. Supervision of associates.

2. Oversee daily store activities, including opening

22

and closing store.

3. Ensure customer and associate safety.

23

4. Protect all company assets, including store cash,

merchandise and equipment.

24

5. Maintain proper sales, banking, inventory,

accounting, productivity, payroll and time records.

25

6. Responsible for adequate staffing of store.

Recruit, interview, hire, employ, and train sales

26

associates. Train associates to properly use all

equipment and technology as well as provide

27

thorough merchandise display training.

28

4

Case3:07-cv-02050-SC Document107 Filed05/26/09 Page5 of 26

United States District Court
For the Northern District of California

1

7. Schedule and assign work to store personnel.

Evaluate, motivate, counsel, develop, discipline

2

and discharge sales associates appropriately.

Maintain production reports to evaluate job

3

performance of sales associates.

8. Provide leadership and direction to store

4

personnel.

9. Communicate company policies to sales associates.

5

Ensure associates comply with company policies and

procedures, including safety guidelines and human

6

resources policies.

10. Analyze sales, expenses, and profit, review

7

reports, analyze competition, determine customer

preferences, manage sales forecasting, meet sales

8

and profit objectives and goals, determine product

mix, determine most effective placement of product

9

and ensure standards for merchandise presentation,

displays and signage to maximize sales. Assist in

10

developing promotions and advertisements as

appropriate.

11

11. Control inventory. Supervise ordering, receiving,

stocking and pricing of goods. Ensure goods are

12

properly marked and mark downs are properly

recorded.

13

12. Responsible for overall cleanliness and appearance

of store.

14

13. Ensure highest level of customer service. Handle

customer complaints and problems.

15

14. Ensure accident reports and damage reports are

completed in timely and accurate manner.

16

15. Complete management reports in a timely and

accurate manner.

17

16. Ensure compliance with applicable laws and

regulations.

18

17. Communicate professionally and effectively with

customers, subordinates and supervisors.

19

20 Id. Ex. B ("SM Job Description"); Ex. C ("Payroll Certification").

21 The certification states that SMs "may not spend more than a total

22 of 35% of his/her actual work time each week receiving product,

23 distributing and storing product, stocking product and

24 cashiering." Payroll Certification.

25

Around the middle of 2005, Dollar Tree began to require all

26 SMs to certify on a weekly basis that they were spending a

27 majority of their time on the tasks described above. McDearmon

28

5

Case3:07-cv-02050-SC Document107 Filed05/26/09 Page6 of 26

United States District Court
For the Northern District of California

1 Decl. ¶ 5. Dollar Tree management held meetings in California to

2 explain the certification process to its SMs. Id. Beginning in

3 2007, Dollar Tree has engaged in follow-up contact with SMs who

4 responded "no" on the certification forms. Id. ¶¶ 6-8.

5

6 III. EVIDENTIARY ISSUES

7

A. Request for Judicial Notice

8

Dollar Tree filed a Request for Judicial Notice ("RJN") in

9 support of its Opposition. Docket No. 150. The Court may take

10 judicial notice of a fact that is "not subject to reasonable

11 dispute in that it is . . . capable of accurate and ready

12 determination by resort to sources whose accuracy cannot

13 reasonably be questioned." Fed. R. Evid. 201(b)(2). The Court

14 may take notice of other court proceedings that have a direct

15 relation to matters at issue. United States ex rel. Robinson

16 Racheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th

17 Cir. 1992). The Court therefore GRANTS Dollar Tree's request with

18 respect to Exhibits A to P, which consist of documents filed

19 earlier in these consolidated cases, or in other court

20 proceedings. The Court GRANTS Dollar Tree's request with respect

21 to Exhibit Q, the State Bar of California's attorney web page for

22 Scott Cole.

23

B. Dollar Tree's Evidentiary Objections

24

Dollar Tree filed Evidentiary Objections in support of its

25 Opposition. Docket No. 149 ("Dollar Tree Objections"). Most of

26 Dollar Tree's objections focus on Plaintiffs' characterization of

27 evidence, rather than its admissibility. The Court relies on the

28

6

Case3:07-cv-02050-SC Document107 Filed05/26/09 Page7 of 26

United States District Court
For the Northern District of California

1 evidence itself, rather than Plaintiffs' characterization of the

2 evidence, and therefore the Court does not need to reach Dollar

3 Tree Objections Nos. 1 to 7, and Objections 10 to 29. See Inamed

4 Corp. v. Kuzmak, 275 F. Supp. 2d 1100, 1115 n.57 (C.D. Cal. 2002).

5 The Court OVERRULES Dollar Tree Objections Nos. 8 and 9, and the

6 objection to the Declaration of Scott Cole, because the statements

7 objected to do not consist of inadmissible hearsay.

8

The Court OVERRULES Dollar Tree's objection to the

9 Declaration of Molly A. Kuehn and the attached putative class

10 member declarations. Dollar Tree bases its objection on Dunbar v.

11 Albertson's, Inc., 141 Cal. App. 4th 1422 (Ct. App. 2006). Dollar

12 Tree states that, in Dunbar, the court disregarded declarations of

13 putative class members. Dollar Tree Objection at 13. In that

14 case, it is clear that the trial court took all of the evidence

15 into account. See Dunbar, 141 Cal. App. 4th at 1433. Dunbar,

16 therefore, provides no support for Dollar Tree's attempt to strike

17 the putative class member declarations.

18

C. Plaintiffs' Evidentiary Objections

19

Plaintiffs filed Evidentiary Objections in support of their

20 Reply. Docket No. 166 ("Plaintiffs' Objections"). Plaintiffs

21 object to the declaration of Patricia Doss, Docket No. 142, on the

22 basis that Patricia Doss was not disclosed as a person likely to

23 have discoverable information under Federal Rule of Civil

24 Procedure 26. Plaintiffs' Objections at 2. Dollar Tree's

25 disclosures show that Patricia Doss was not previously disclosed,

26 and therefore the Court will not consider her declaration in

27 ruling on this Motion.

28

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For the Northern District of California

1

Plaintiffs object to the declaration of David McDearmon,

2 Docket No. 144. The Court finds that the contents of this

3 declaration are either not inadmissible hearsay or are business

4 records under Federal Rule of Evidence 803(6), and the Court

5 therefore OVERRULES Plaintiffs' objection. Plaintiffs object to

6 the declarations of Steven Pearson, Docket No. 145, Charlotta

7 Jacobson-Allen, Docket No. 137, and Pam Wolpa, Docket No. 147.

8 The Court OVERRULES Plaintiffs' objections finding that they do

9 not raise concerns regarding admissibility, and the objections are

10 without merit. Plaintiffs object to statements in Dollar Tree's

11 SM declarations, Docket No. 138. Plaintiffs' Objections at 8-20.

12 The Court OVERRULES Plaintiffs' objections. The Court has

13 considered these declarations in ruling on this Motion, but the

14 Court does not rely on any statements that are purely speculative,

15 too vague, or mere opinions.

16

17 IV. LEGAL STANDARD

18

Federal Rule of Civil Procedure 23 governs the certification

19 of class actions. A class action must meet the requirements of

20 Rule 23(a) and fall within one of three categories set forth in

21 Rule 23(b). Fed. R. Civ. P. 23. For a class to be certified

22 under Rule 23(a), Plaintiffs must show that the following

23 conditions are met: (1) the class is so numerous that joinder of

24 all members is impractical; (2) there are questions of law or fact

25 common to the class; (3) the claims or defenses of the

26 representative parties are typical of the claims or defenses of

27 the class; and (4) the representatives will fairly and adequately

28

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1 represent the interests of the class. Fed. R. Civ. P. 23(a); see

2 also Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 613

3 (1997)(describing requirement). In addition, a class can be

4 certified if common questions of law or fact predominate, and

5 class resolution is superior to other available methods for fair

6 and efficient adjudication of the controversy. Fed. R. Civ. P.

7 23(b); see also Amchem, 521 U.S. at 614 (describing requirement).

8

A district court may certify a class only if, after "rigorous

9 analysis," it determines that the plaintiff has established by

10 sufficient evidence that all of the requirements set forth by Rule

11 23 are satisfied. See Gen. Tel. Co. of the Southwest v. Falcon,

12 457 U.S. 147, 158-61 (1982); Valentino v. Carter-Wallace, Inc., 97

13 F.3d 1227, 1233 (9th Cir. 1996). The party seeking certification

14 bears the burden of proof with respect to these requirements.

15 Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180, 1186, as

16 amended, 273 F.3d 1266 (9th Cir. 2001). Plaintiff can meet this

17 burden by providing the court with a sufficient basis for forming

18 a reasonable judgment on each requirement. Blackie v. Barrack,

19 524 F.2d 891, 901 (9th Cir. 1975).

20

In determining whether an action warrants class treatment

21 under Rule 23, "the question is not whether the plaintiff or

22 plaintiffs have stated a cause of action or will prevail on the

23 merits, but rather whether the requirements of Rule 23 are met."

24 Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177 (citation

25 omitted); see also Staton v. Boeing Co., 327 F.3d 938, 954 (9th

26 Cir. 2003)(accord). However, the court may consider evidence

27 relating to the merits if the evidence also goes to the

28

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1 requirements of Rule 23. Hanon v. Dataproducts Corp., 976 F.2d

2 497, 508 (9th Cir. 1992).

3

4 V. DISCUSSION

5

A. Numerosity

6

Rule 23(a)(1) provides that a class action may be maintained

7 only if "the class is so numerous that joinder of all parties is

8 impracticable." Fed. R. Civ. P. 23(a)(1). However,

9 "impracticable" does not mean impossible; it refers only to the

10 difficulty or inconvenience of joining all members of the class.

11 Harris v. Palm Springs Alpine Estates, Inc., 329 F.2d 909, 913-14

12 (9th Cir. 1964). In determining whether joinder would be

13 impracticable, a court should consider not only the number of

14 class members, but also "the nature of the action, the size of the

15 individual claims, [and] the inconvenience of trying individual

16 suits . . . ." Wang, 231 F.R.D. at 606 (citing Jordan v. County

17 of Los Angeles, 669 F.2d 1311, 1319 (9th Cir. 1982), vacated on

18 other grounds, 459 U.S. 810 (1982)).

19

Here, Plaintiffs allege the class contains at least 655

20 members. Mot. at 14 n.56. Defendant responds that there are

21 currently 273 SMs in California. Opp'n at 1 n.5. Defendants do

22 not dispute that this first prerequisite is satisfied. See Opp'n

23 at 5. The Court finds that the class is so numerous that joinder

24 of all parties is impracticable.

25

B. Commonality

26

Rule 23(a)(2) requires that there be "questions of law or

27 fact common to the class." Fed. R. Civ. P. 23(a)(2). The

28

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1 commonality requirement is less rigorous than the related

2 requirement in Rule 23(b)(3) that commmon questions of law or fact

3 predominate. Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019 (9th

4 Cir. 1998). The commonality requirement must be "construed

5 permissively." Id. "All questions of fact and law need not be

6 common to satisfy the rule. The existence of shared legal issues

7 with divergent factual predicates is sufficient, as is a common

8 core of salient facts coupled with disparate legal remedies within

9 the class." Id.; see also Perry v. U.S. Bank, No. 00-1799, 2001

10 WL 34920473, at *7 (N.D. Cal. Oct. 17, 2001) (finding Rule

11 23(a)(2) was satisfied but Rule 23(b)(3) was not).

12

Plaintiffs identify the common questions of fact as "what

13 tasks SMs do, the resources they use to do it, the environment

14 within which they do it, and the directives from Dollar Tree's

15 corporate office." Mot. at 18 n.61 (emphasis in original).

16 Plaintiffs suggest that questions concerning Dollar Tree's

17 certification process, and whether SMs perform the tasks described

18 in the SM Job Description, are common factual issues. Mot. at 18-

19 20; Reply at 2, 7. Plaintiffs further contend that the legal

20 issues in this case, such as whether it is proper for Dollar Tree

21 to classify its SMs as exempt, whether SMs are entitled to meal

22 and rest breaks, and the adequacy of Dollar Tree's record-keeping,

23 are common to all putative class members. Mot. at 17-18.

24

Dollar Tree responds by pointing to variations in how SMs

25 perform their jobs. Opp'n at 21. The Court does not deny the

26 work experience of particular SMs varies considerably, but these

27 variations do not undercut Plaintiffs' contention that all of the

28

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For the Northern District of California

1 legal issues and many of the factual questions are the same for

2 all putative class members. "The existence of shared legal issues

3 with divergent factual predicates is sufficient" to satisfy the

4 commonality requirement. Hanlon, 150 F.3d at 1019. The Court

5 finds that there are questions of law and fact common to the

6 proposed class.

7

C. Typicality

8

Rule 23(a)(3) requires that the representative parties'

9 claims be "typical of the claims . . . of the class." Fed. R.

10 Civ. P. 23(a)(3). "Under the rule's permissive standards,

11 representative claims are 'typical' if they are reasonably

12 co-extensive with those of absent class members; they need not be

13 substantially identical." Hanlon, 150 F.3d at 1020. Rule 23

14 "does not require the named plaintiffs to be identically situated

15 with all other class members. It is enough if their situations

16 share a common issue of law or fact and are sufficiently parallel

17 to insure a vigorous and full presentation of all claims for

18 relief." Cal. Rural Legal Assistance, Inc. v. Legal Servs. Corp.,

19 917 F.2d 1171, 1175 (9th Cir. 1990). "Typicality refers to the

20 nature of the claim or defense of the class representative, and

21 not to the specific facts from which it arose . . . . The test of

22 typicality is whether other members have the same or similar

23 injury, whether the action is based on conduct which is not unique

24 to the named plaintiffs, and whether other class members have been

25 injured by the same course of conduct." Hanon, 976 F.2d at 508

26 (citation and internal quotation marks omitted). In practice,

27 "[t]he commonality and typicality requirements of Rule 23(a) tend

28

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For the Northern District of California

1 to merge." Gen. Tel. Co. of the Southwest, 457 U.S. at 157 n.13.

2

Here, Plaintiffs contend that the typicality requirement is

3 met because the proposed class representatives possess the same

4 interests as other SMs, and allege violations impacting other SMs.

5 Mot. at 15. Dollar Tree responds that the variations in the work

6 experience of SMs shows that the requirement is not satisfied.

7 Opp'n at 21. The Court is not persuaded by Dollar Tree's

8 response. The typicality requirement does not require that

9 Hansen, Cruz, and Runnings be identically situated to all other

10 SMs. Because the alleged injury is based on an alleged improper

11 classification of SMs, and Plaintiffs Hansen, Cruz, and Runnings

12 were employed as SMs, they have suffered the same alleged injury,

13 and therefore have the same claims as other SMs. The Court finds

14 that Plaintiffs' claims are typical of the claims of the proposed

15 class.

16

D. Adequacy of Representation

17

Rule 23(a)(4) requires a showing that "the representative

18 parties will fairly and adequately protect the interests of the

19 class." Fed. R. Civ. P. 23(a)(4). This requirement is grounded

20 in constitutional due process concerns; "absent class members must

21 be afforded adequate representation before entry of a judgment

22 which binds them." Hanlon, 150 F.3d at 1020 (citing Hansberry v.

23 Lee, 311 U.S. 32, 42-43 (1940)). The Court must resolve two

24 questions: "(1) do the named plaintiffs and their counsel have any

25 conflicts of interest with other class members and (2) will the

26 named plaintiffs and their counsel prosecute the action vigorously

27 on behalf of the class?" Id. (citing Lerwill v. Inflight Motion

28

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Case3:07-cv-02050-SC Document107 Filed05/26/09 Page14 of 26

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For the Northern District of California

1 Pictures, Inc., 582 F.2d 507, 512 (9th Cir. 1978)). Both the

2 named plaintiffs and their counsel must have sufficient "zeal and

3 competence" to protect the interests of the rest of the class.

4 Fendler v. Westgate-California Corp., 527 F.2d 1168, 1170 (9th

5 Cir. 1975). This requirement again tends to merge with the

6 commonality and typicality requirements. Gen. Tel. Co. of the

7 Southwest, 457 U.S. at 157 n.13.

8

Dollar Tree contends that Cruz, Hansen, and Runnings are not

9 adequate class representatives because they are not credible or

10 trustworthy. Opp'n at 22. The credibility allegations are based

11 on the claim that Hansen, as an SM, often certified that he spent

12 a majority of his time working on the managerial tasks listed in

13 the weekly Payroll Certification, but later claimed in a

14 declaration that he spent most of his time stocking shelves and

15 cashiering. Id. at 12-13. In his deposition, Hansen testified

16 that he understood he was supposed to spend most of his time on

17 managerial functions. See Eltanal Decl. Ex. E ("Hansen Dep.") at

18 88:4-15.6 However, Dollar Tree presents no evidence that Hansen

19 often certified that he spent most of his time performing

20 managerial tasks. For example, Dollar Tree does not provide any

21 of Hansen's actual certifications. The inconsistency between his

22 deposition testimony and statements in a declaration is not

23 sufficient to impugn Hansen's credibility.

24

The untrustworthiness allegations are based on the

25

26

6 Rossana Eltanal, an associate in the firm Littler Mendelson,

counsel for Defendant, filed a declaration in support of 27 Defendant's Opposition. Docket No. 146.

28

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For the Northern District of California

1 circumstances surrounding Hansen's and Runnings' separations from

2 Dollar Tree. Id. at 22. Dollar Tree alleges that Hansen was

3 terminated for tampering with his employees' time records, and

4 that Runnings resigned after it was discovered he was in

5 possession of a confidential document. Id. at 22-23. The Court

6 finds that these allegations are not sufficient to show Plaintiffs

7 have conflicts of interest with other class members. Nor do these

8 allegations show that Plaintiffs will not prosecute the action

9 vigorously on behalf of the class. The Court is satisfied that

10 Plaintiffs will fairly and adequate represent the interests of the

11 class.

12

E. Predominance and Superiority

13

The key question in deciding this Motion is whether

14 Plaintiffs can satisfy the prerequisites of predominance and

15 superiority. Rule 23(b)(3) requires the court to find that "the

16 questions of law or fact common to class members predominate over

17 any questions affecting only individual members, and that a class

18 action is superior to other available methods for fairly and

19 efficiently adjudicating the controversy." Fed. R. Civ. P.

20 23(b)(3). These questions are interrelated because "[i]mplicit in

21 the satisfaction of the predominance test is the notion that the

22 adjudication of common issues will help achieve judicial economy."

23 Valentino, 97 F.3d at 1234.

24

1. Predominance

25

The predominance requirement is "far more demanding" than the

26 commonality requirement of Rule 23(a). Amchem, 521 U.S. at 623-

27 24. However, "[w]hen common questions present a significant

28

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For the Northern District of California

1 aspect of the case and they can be resolved for all members of the

2 class in a single adjudication, there is clear justification for

3 handling the dispute on a representative rather than an individual

4 basis." Hanlon, 150 F.3d at 1022. "'Because no precise test can

5 determine whether common issues predominate, the Court must

6 pragmatically assess the entire action and the issues involved.'"

7 Tierno v. Rite Aid Corp., No. 05-2520, 2006 WL 2535056, at *5

8 (N.D. Cal. Aug. 31, 2006)(quoting Romero v. Producers Dairy Foods,

9 Inc., 235 F.R.D. 474, 489 (E.D. Cal. 2006)).

10

Considering all the evidence, the Court finds that Dollar

11 Tree's standardized policies and practices support Plaintiffs'

12 contention that common issues predominate. The evidence that

13 supports this contention includes Dollar Tree's certification

14 process, its common training program for SMs, and the common tools

15 SMs use to perform their jobs. See Mot. at 2-12.

16

The Court finds that the most convincing evidence in support

17 of Plaintiffs' contention that common issues predominate is Dollar

18 Tree's certification process. Dollar Tree requires its California

19 SMs to fill out a weekly certification report. Hensley Dep. at

20 251:8-11; Ex. F ("Camp Dep.") at 134:25-135:2; Balderas Dep. at

21 163:1-6. This certification lists seventeen tasks and SMs are

22 required to certify that they spend a majority of their time

23 performing these tasks. See Payroll Certification. Dollar Tree

24 held meetings in Chino and Torrance, California, to review and

25 explain the certification process to SMs. Balderas Dep. at

26 157:11-158:25. There was also a meeting concerning the

27 certification process in Sacramento. Camp Dep. at 132:7-9.

28

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United States District Court
For the Northern District of California

1

Because all of Dollar Tree's California SMs are required to

2 perform a common set of tasks, Dollar Tree's reliance on Sepulveda

3 v. Wal-Mart Stores, Inc., is misplaced. 237 F.R.D. 229 (C.D. Cal.

4 2006) rev'd in part, aff'd in part, 275 Fed. Appx. 672 (9th Cir.

5 2008). In that case, the court found that individual questions

6 predominate over common issues because of the "voluminous evidence

7 that there actually was a great deal of variance in AM [Assistant

8 Manager] duties . . . AM duties varied based on the

9 characteristics of the store, its workforce, and the surrounding

10 community." Sepulveda, 237 F.R.D. at 249.7 Here, by contrast,

11 Dollar Tree requires its SMs to certify every week that they spend

12 most of their time performing a finite number of duties. Also,

13 the class size in this case is considerably smaller than in

14 Sepulveda, where there were approximately 2750 putative class

15 members. Id. at 242.

16

Dollar Tree presents evidence suggesting variations in how

17 SMs go about performing those tasks. Opp'n at 2-5. For example,

18 Dollar Tree submits a detailed comparison of twenty-five

19 California stores showing they vary considerably in size, number

20 of different products available for SMs to order, sales, and

21 average monthly payroll hours. Jacobson-Allen Decl. Ex. A

22 ("California Store Comparison Chart").8 Dollar Tree filed a

23
7 The Ninth Circuit reversed the district court's denial of 24 class certification under Rule 23(b)(2), but affirmed the district
court's Rule 23(b)(3) determination. 25
8 Charlotta Jacobson-Allen, a paralegal and complex litigation 26 specialist working in Dollar Tree's in-house legal department,
filed a declaration in support of Dollar Tree's Opposition. 27 Runnings Docket No. 137

28

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Case3:07-cv-02050-SC Document107 Filed05/26/09 Page18 of 26

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For the Northern District of California

1 document showing the differing roles and experiences of California

2 SMs. Id. Ex. B ("California Store Managers Have Different Work

3 Experiences"). Dollar Tree submitted twenty SM declarations to

4 show that SMs have substantially different day-to-day experiences

5 and duties. Docket No. 138 ("SM Declarations"). Dollar Tree

6 contrasts the deposition testimony of the Plaintiffs with the

7 testimony of other SMs to show they perform their jobs in

8 different ways. Opp'n at 2-5. Dollar Tree also submits

9 deposition testimony of SMs to show they have considerable

10 autonomy and discretion in fulfilling their tasks and

11 responsibilities. Opp'n at 5-11.

12

Despite this evidence of variation, Dollar Tree does not,

13 and cannot, deny that all California SMs are required to spend a

14 majority of their time performing a set of seventeen tasks. See

15 Tierno v. Rite Aid Corp., No. 05-2520, 2006 WL 2535056, at *9

16 (N.D. Cal. Aug. 31, 2006)(noting that Rite Aid's self-audits and

17 study, which were designed to show variations in how store

18 managers performed specified tasks, also counted as concession

19 "that a single set of tasks is applicable to all Store Managers").

20 For example, while one SM declares that he spent only thirty

21 minutes per week preparing employee schedules, SM Declarations Ex.

22 4 ("Declaration of Damien John Bujwid"), and another SM declares

23 he spent four hours per week preparing employee schedules, SM

24 Declarations Ex. 20 ("Declaration of Deborah Wiebe"), this

25 comparison also shows that both SMs spent time every week engaged

26 in one of the common duties on the Payroll Certification, namely,

27 "[s]chedul[ing] and assign[ing] work to store personnel." While

28

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United States District Court
For the Northern District of California

1 one SM declares that he spent five hours per week hiring new

2 employees, SM Declarations Ex. 6 ("Declaration of Kimberly

3 Castellanos"), and another SM spent only thirty minutes per week

4 on hiring, SM Declarations Ex. 12 ("Declaration of Lisa Diane

5 Fitts"), hiring is also one of the common duties on the Payroll

6 Certification. This Court can resolve the question of whether SMs

7 who spend most of their time performing these seventeen duties are

8 exempt from California's overtime laws. This question is a common

9 one for all California SMs. There is therefore a clear

10 justification for handling this dispute on a representative rather

11 than an individual basis.

12

The Court notes the irony of relying on Dollar Tree's

13 certification process to find that the case is suitable for class-

14 wide treatment, when Dollar Tree implemented that process after

15 its earlier settlement, and precisely in order to ensure that its

16 SMs were properly classified. See McDearmon Decl. ¶¶ 5-8. Those

17 certifications certainly support Dollar Tree's contention that it

18 is not liable for improperly classifying SMs. SMs will have to

19 explain why they consistently certified "yes" on the Payroll

20 Certifications if in fact they were spending most of their time

21 stocking shelves and cashiering. However, that liability question

22 is not presently before the Court, and a class certification

23 motion is not an occasion to "advance [to] a decision on the

24 merits." See Moore v. Hughes Helicopters, Inc., 708 F.2d 475, 480

25 (9th Cir. 1983). Here, the question is whether common issues

26 predominate, and the fact that all California SMs share the same

27 job description, which requires them to spend most of their time

28

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Case3:07-cv-02050-SC Document107 Filed05/26/09 Page20 of 26

United States District Court
For the Northern District of California

1 performing tasks on a list consisting of seventeen duties,

2 supports the conclusion that they do.

3

Plaintiffs' evidence of Dollar Tree's standardized practices

4 and procedures provides further evidence in support of the

5 contention that common issues predominate. Dollar Tree's training

6 program for SMs is standardized throughout California. Hensley

7 Dep. at 82:19-83:7. Dollar Tree's SM training program for new

8 hires lasts eight weeks, and its SM training program for assistant

9 managers who are being promoted lasts four weeks. Id. at

10 54:13-55:14. The corporate office in Virginia develops the

11 written materials for the training program. Balderas Dep.

12 84:11-85:8. Dollar Tree does not formally retrain SMs when they

13 are transferred to other stores. Hensley Dep. at 132:11-133:5.

14 SMs are given the same training, irrespective of which store they

15 might be assigned to down the road. Cole Decl. Ex. D ("Dunaway

16 Dep.") at 128:12-18; Hensley Dep. at 190:16-19.

17

SMs use common tools in performing their duties at Dollar

18 Tree. SMs have online access to "plan-o-guides" which recommend,

19 but do not require, that a certain kind of merchandise be

20 displayed in a particular location. Hensley Dep. at 97:3-100:5;

21 Camp Dep. at 58:5-19. SMs can also access information and

22 bulletins online via "Dollar Tree Central." Hensley Dep. at

23 155:3-10; Balderas Dep. at 38:19-25, 66:8-24. Using Dollar Tree

24 Central, SMs can access newsletters, merchandising suggestions,

25 forms, policies, and information relating to benefits. Camp Dep.

26 at 57:3-7. All store managers in California use a computer

27 application called "COMPASS" to create schedules for their staff.

28

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For the Northern District of California

1 Hensley Dep. at 121:14-22; Camp Dep. at 33:23-34:8; Ex. M. Dollar

2 Tree maintains an auto replenishment system which automatically

3 generates orders for some products. Balderas Dep. at 106:6-18.

4 Store managers are also encouraged to use a playbook, which

5 provides information on ordering, scheduling, and basic general

6 information about Dollar Tree. Cole Decl. Ex. E ("Tellstrom

7 Dep.") at 59:15-60:2.

8

Dollar Tree relies on Jimenez v. Domino's Pizza, 238 F.R.D.

9 241 (C.D. Cal. 2006), but the Court finds that the case is

10 distinguishable. In Jimenez, the Court was not confronted with

11 evidence of standardized policies and practices. 238 at 251-53.

12 Where, as here, there is evidence that the duties of the job are

13 defined by standardized procedures and policies, district courts

14 have routinely certified classes of employees challenging their

15 classification as exempt, despite arguments about individualized

16 differences in job performance. See, e.g., Krzesniak v. Cendant

17 Corp., No. 05-05156, 2007 WL 1795703, at *3 (N.D. Cal. Jun. 20,

18 2007) (branch managers at car rental chain); Alba v. Papa John's

19 USA, Inc., No. 05-7487, 2007 WL 953849, at *1 (C.D. Cal. Feb. 7,

20 2007)(store managers at pizza delivery chain); Whiteway v. FedEx

21 Kinko's Office and Print Services, Inc., No. 05-2320, 2006 WL

22 2642528, at *1 (N.D. Cal. Sep. 14, 2006) (managers at shipping and

23 print services retail chain); Tierno, 2006 WL 2535056, at *5-10

24 (N.D. Cal. Aug. 31, 2006)(store managers at drug store chain).

25 The Court finds that Plaintiffs have satisfied the prerequisite of

26 predominance.

27 ///

28

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For the Northern District of California

1

2. Superiority

2

Matters pertinent to finding that a class action is superior

3 to other available methods for the fair and efficient adjudication

4 of the controversy include: (A) "the class members' interests in

5 individually controlling the prosecution or defense of separate

6 actions"; (B) "the extent and nature of any litigation concerning

7 the controversy already begun by or against class members"; (C)

8 "the desirability or undesirability of concentrating the

9 litigation of the claims in the particular forum"; and (D) "the

10 likely difficulties in managing a class action." Fed. R. Civ. P.

11 23(b)(3).

12

Considering these matters as a whole, the Court finds they

13 favor class certification. The first matter "is most relevant

14 where each class member has suffered sizeable damages or has an

15 emotional stake in the litigation." Zinser, 253 F.3d at 1190.

16 Likewise, "[w]here damages suffered by each putative class member

17 are not large, this factor weighs in favor of certifying a class

18 action." Id.; Haley v. Medtronic, Inc., 169 F.R.D. 643, 652 (C.D.

19 Cal. 1996). Here, Plaintiffs point out that it would be far more

20 costly and time consuming for individual class members to file

21 multiple individual suits. Mot. at 22. The Court agrees.

22 Furthermore, to the extent that individual SMs are entitled to any

23 damages, they are not likely to be large enough to justify

24 multiple independent suits. See Gentry v. Super. Ct., 42 Cal. 4th

25 443, 459 (2007); Sav-On Drugs Stores, Inc. v. Super. Ct., 34 Cal.

26 4th 319, 340 (2004).

27

With regard to the second matter, the Ninth Circuit noted

28

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For the Northern District of California

1 that "[i]f the court finds that several other actions already are

2 pending and that a clear threat of multiplicity and a risk of

3 inconsistent adjudications actually exist, a class action may not

4 be appropriate . . . ." Zinser, 253 F.3d at 1191 (quoting Charles

5 Alan Wright & Arthur R. Miller, Federal Practice and Procedure §

6 1780 at 568-70 (2d ed. 1986)). Here, the Court notes that Diana

7 Fierro, a California SM, currently has a case pending in Santa

8 Clara County Superior Court, Fierro v. Dollar Tree, No. 1-08-CV-

9 103712. McClain Decl. Ex. M ("Fierro Compl."), Ex. N ("Order re:

10 Motion for Summary Judgment").9 This lawsuit was filed on January

11 22, 2008, and it contains causes of action that go beyond

12 allegations that Dollar Tree violated California's labor laws.

13 See Fierro Compl. Since the complaints filed by Cruz, Hansen, and

14 Runnings were filed earlier, and since there are not several cases

15 pending in other courts, the Court will not deny certification

16 based on the fact that one other case is pending.

17

With regard to the appropriate forum for Plaintiffs' claims,

18 Dollar Tree does point out that SMs may utilize an administrative

19 forum, the Division of Labor Standards Enforcement, to resolve

20 wage disputes. Opp'n at 25. However, merely pointing to the

21 availability of another forum does not show its superiority. In

22 Bell v. Farmers Insurance Exchange, the California Court of

23 Appeals found that individualized hearings had several

24 disadvantages for the employee -- injunctive relief is not

25

26

9 Maureen McClain, an attorney and shareholder in the firm

Littler Mendelson, counsel for Defendant, filed a declaration in 27 support of Defendant's Opposition. Docket No. 143.

28

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Case3:07-cv-02050-SC Document107 Filed05/26/09 Page24 of 26

United States District Court
For the Northern District of California

1 available, employees cannot recover attorney fees if they choose

2 to retain counsel, and a losing employer has a right to a trial de

3 novo in Superior Court where the ruling of the hearing officer is

4 entitled to no deference. 115 Cal. App. 4th 715, 745-46 (Ct. App.

5 2004). Also, "courts have not hesitated to certify class actions

6 for wage and hour claims simply because California law provides

7 for administrative relief." Wang, 231 F.R.D. at 614.

8

With regard to future difficulties that may arise in managing

9 this class action, district courts have the inherent discretion to

10 review class certification decisions at any time. Armstrong v.

11 Davis, 275 F.3d 849, 872 n.28 (9th Cir. 2001). If unanticipated

12 or unmanageable individual differences arise, the Court retains

13 the option of decertification. Sav-On, 34 Cal. 4th at 335 (citing

14 Lazar v. Hertz Corp. (1983) 143 Cal. App. 3d 128, 144 (1983)).

15 The Court concludes that a class action is superior to other

16 available methods for the fair and efficient adjudication of this

17 controversy.

18

F. Class Counsel

19

In appointing class counsel, the court must consider: (i)

20 "the work counsel has done in identifying or investigating

21 potential claims in the action"; (ii) "counsel's experience in

22 handling class actions"; (iii) "counsel's knowledge of the

23 applicable law"; and (iv) "the resources that counsel will commit

24 to representing the class." Fed. R. Civ. P. 23(g)(1)(A). The

25 Court finds that Plaintiffs' attorneys are experienced class

26 action litigators. See Cole Decl. Ex. Q ("Firm Resume and

27 Overview"). The Court notes that a considerable amount of

28

24

Case3:07-cv-02050-SC Document107 Filed05/26/09 Page25 of 26

United States District Court
For the Northern District of California

1 discovery has taken place in this case including depositions and

2 document review. Id. ¶ 20. The Court finds that Plaintiffs'

3 attorneys are likely to fairly and adequately represent the

4 interests of the class, as required by Federal Rule of Civil

5 Procedure 23(g)(4).

6

7 VI. CONCLUSION

8

For the reasons stated above, the Court GRANTS the Amended

9 Motion for Class Certification, and ORDERS as follows:

10

1. The class is defined as: All persons who were employed

11

by Dollar Tree Stores, Inc. as California retail Store

12

Managers at any time on or after December 12, 2004.

13

2. Plaintiffs Miguel Cruz, John Hansen, and Robert Runnings

14

are appointed as class representatives.

15

3. The firm of Scott Cole & Associates is appointed as

16

class counsel.

17

4. The parties shall meet and confer in good faith as soon

18

as practicable with respect to the requirements of

19

Federal Rule of Civil Procedure 23(c)(2)(B) governing

20

notice to the class. No later than twenty (20) days

21

from the date of this Order, Plaintiffs shall file a

22

Stipulation and Proposed Order explaining how the class

23

will be notified. Plaintiffs shall also submit a copy

24

of the Proposed Notice.

25

5. To the extent that the parties cannot reach an agreement

26

concerning notice to the class, each party may submit a

27

brief of no more than five (5) pages addressing the

28

25

Case3:07-cv-02050-SC Document107 Filed05/26/09 Page26 of 26

United States District Court
For the Northern District of California

1

problem and proposing a solution. The briefs will be

2

due no later than twenty (20) days from the date of this

3

Order.

4

5

IT IS SO ORDERED.

6

7

Dated: May 26, 2009

8 UNITED STATES DISTRICT JUDGE
9

10

11

12

13

14

15

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 Case3:07-cv-02050-SC Document188 Filed06/18/10 Page1 of 34

1 MAUREEN E. McCLAIN, Bar No. 062050

MATTHEWP. VANDALL BarNo. 196962

2 KRISTA STEVENSON JOHNSON, BarNo. 185241

LITTLER MENDELSON

3 A Professional Corporation

650 California Street, 20th Floor

4 San Francisco, CA 94108.2693

Telephone: 415.433.1940

5 Facsimile: 415.399.8490

Email:

mmcclain@littler.com

6 Email:

mvandall@littler.com

Email:

kjohnson@littler.com

7

Attorneys for Defendant

8 DOLLAR TREE STORES, INC.

9 BETH HIRSCH BERMAN, VA Bar No. 28091

WILLIAMS MULLEN

lOA Professional Corporation

999 Waterside Drive

11 1700 Dominion Tower

Norfolk, VA 23510

12 Telephone: (757) 629-0604

Facsimile: (757) 629-0660

13 Email:

bberman@williamsmullen.com

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
LITTLER MENDELSON
A PROFESSIONflLCORPOIIUION 650 C~llfQrnlu Slre~1 201hFIoor
Sitn Francltco. CA 941082693 4154331940

Pro Hac Vice Attorneys for Defendant DOLLAR TREE STORES, INC.

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

MIGUEL A. CRUZ and JOHN D. HANSEN, individually and on behalf of all others similarly situated,
Plaintiffs,
v.
DOLLAR TREE STORES, INC., Defendant.
ROBERT RUNNINGS individually, and on behalf of all others similarly situated,
Plaintiff, v.

Case Nos. C 072050 SC and C 07 04012 SC

DEFENDANT DOLLAR TREE STORES, INC.'S NOTICE OF MOTION AND MOTION TO DECERTIFY THE CLASS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

Hearing: Time: Dept.: Judge:

July 23,2010 10:00 a.m. 1, 17th Floor Hon. Samuel Conti

Trial Date:

March 7,2011

Complaints Filed: April 11, 2007

July 6,2007

DOLLAR TREE STORES, INC., Defendant.

DEFT'S MOTION TO DECERTIFY THE CLASS; MEMORANDUM IN SUPPORT THEREOF

CASE NOS. C 07 2050 SC and C 07 04012 SC

Case3:07-cv-02050-SC Document188 Filed06/18/10 Page2 of 34

1

TABLE OF CONTENTS

2
PAGE

3 I. ISSUES TO BE DECIDED .................................................................................................... 2

4 II. SUMMARY OF ARGUMENT AND STATEMENT OF FACTS...................................... 2

III. LEGAL ARGUMENT ........................................................................................................... 4

5

A. New Case Law Decided Since Class Certification Compels Decertification.............. 5

6

1. Vinole And Wells Fargo Have Changed The Relevant Legal Analysis.......... 5

7

2. Legal Authority Cited In The Class Cert. Order Should Be ReEvaluated In Light Of The Intervening Change In Law.................................. 7

8

B. New Facts Developed Since The Class Cert. Order Compel Decertification.............. 8

9

1. CMs Varied Approaches To And Understanding Of The Certification Process Requires Decertification..................................................................... 8

10

a. Plaintiffs Admit That The Certification Process Does Not

Provide A Valid Description Of What The CMs Do........................... 8

11

b. Expert Analysis Of The Certification Process Warrants

12

Decertification Of The Class............................................................... 9

c. CMs' Testimony Shows That The Certifications Are Not

13

Evidence Of Common Job Duties...................................................... 10

14

2. Decertification Is Warranted Because Of The Different Experiences And Job Duties Among Dollar Tree Store Managers.................................... 11

15

3. DT's Training Program Does Not Show The Type Of Common

Experience Necessary For Class Certification............................................... 16

16

4. The Class Members' Varying Use Of Tools Provided By Dollar Tree

17

To Ensure Independent Decision-Making Shows Differences In Their Job Duties....................................................................................................... 17

18

a. CMs Used The Management Tools In A Variety Of Ways............... 17

19

b. CMs Had Varying Approaches To Ordering And Displaying Merchandise In Their Stores.............................................................. 19

20

c. . CMs Had Varying Experiences With Human Resources

Functions............................................................................................ 20

21

C. Because No CM Or Group Of CMs Can Provide Accurate Testimony On

22

Behalf Of The Entire Class, A Class Action Is Not The Superior Method Of Determining These Claims........................................................................................ 21

23

1. It Is Not Appropriate To Try An Exemption Case Containing

Numerous Factual Issues Using Representative Testimony.......................... 21

24

2. Plaintiffs' Scattershot Proposals For A Trial Plan Do Not Pass Legal

25

Muster............................................................................................................ 24

3. Credibility Issues Require An Individualized Inquiry................................... 28

26

D. Class Certification Is Not Appropriate For Meal And Rest Period Claims............... 29

27 IV. CONCLUSION .................................................................................................................... 30

28

LITTLER MENDELSON

DEFT'S MOTION TO DECERTIFY THE CLASS;

1.

A PROFUSIONAlCOII;PoRAtlON
650 California Streel

MEMORANDUM IN SUPPORT THEREOF

2D(hFloor

San Ftan<:IH:o. CA

,~!1~~,2~~~i'

CASE NOS. C 07 2050 SC and C 07 04012 SC

Case3:07-cv-02050-SC Document188 Filed06/18/10 Page3 of 34

1

TABLE OF AUTHORITIES

2

PAGE

3

4

CASES

Alba v. Papa John's USA, Inc.,

5

2007 U.S. Dist. LEXIS 28079 (C.D. Cal. 2007) ............................................................................ 7

6

Blackwell v. Sky West Airlines, Inc., 245 F.R.D. 453 (S.D. Cal. 2007) ................................................................................................. 30

7 Brinker v. Superior Court,

165 Cal.App.4th 25 (2008)

8

(depub., rev. grant. Oct. 22, 2008) ............................................................................................... 30

9

Brinkley v. Public Storage, Inc., 167 Cal.App.4th 1278 (2008)

10

(depub. rev. grant. Jan. 14, 2009) .....................................,.......................................................... 30

Brown v. Federal Express,

11

249 F.R.D. 580 (C.D. Cal. 2008) .....,........................................................................................... 30

12

Howard v. GAP, Inc., 2009 U.S. Dist. LEXIS 10596 (N.D. Cal, Oct. 29, 2009) .............................................................. 6

13 In re Wells Fargo Home Mortgage Overtime Pay Litig.,

.

571 F.3d 953 (9th Cir. 2009) ............................................................................................. 3, 5, 6, 7

14 In re Wells Fargo Home Mortgage Overtime Pay Litigation,

15

2010 U.S. Dist. LEXIS 3132 (N.D. Cal. Jan. 12,2010) ....................................................... passim

Jimenez v. Domino's Pizza, Inc.,

16

238 F.R.D. 241 (2006) ................................................................................................................. 22

17

Johnson v. Big Lots, 561 F.Supp.2d 567 (E.D. Louisiana 2008) ............................................................................ 23, 26

18 Kenny v. Supercuts, Inc.,

252 F.R.D. 641 (N.D. Cal. 2008) ................................................................................................. 30

19 Krzesniak v. Cedent Corp.,

20

2007 U.S. Dist. LEXIS 47518 (N.D. Cal. 2007) ........................................................................... 7

Marlo v. United Parcel Service, Inc.,

21

251 F.R.D. 476 (C.D. Cal. 2008) ....................................................................................... 4, 21, 25

22

Mendoza v. Home Depot, USA, Inc., 2010 U.S. Dist. LEXIS 13025 (C.D. Cal. Jan. 21,2010) .............................................................. 6

23 Pablo v. Servicemaster Global Holdings, Inc.,

2009 WL 2524478 (N.D. Cal. 2009) ....................................................................................... 6, 21

24 Perez v. Safety-Kleen Sys., Inc.,

25

253 F.R.D. 508 (N.D. Cal. 2008) ................................................................................................. 30

Ramirez v. Yosemite Water Co.,

26

20 Cal. 4th 785

85 Cal. Rptr. 2d 844,

27

978 P.2d2 (1999) .......................................................................................................................... 23

28

Rodriguez v. Gates, 2002 U.S. Dist. LEXIS 10654 (C.D. Cal. 2002) .......................................................................... 25

LITTLER MENDELSON

DEFT'S MOTION TO DECERTIFY THE CLASS;

11.

A. PROFESSIONAL COIO'ORATION 650 C.,ifornia S\(eel

MEMORANDUM IN SUPPORT THEREOF

20th Floor

San Fr.ncisco, CA 94108.2693

415.4331940

CASE NOS. C 07 2050 SC and C 07 04012 SC

Case3:07-cv-02050-SC Document188 Filed06/18/10 Page4 of 34

1 2
3 4 5 6 7 8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
LITTLER MENDELSON A PROfESSIOMAl CORPORATION
650 Cllllf()rn~. SIr8el 201llFIoof
San Ffarocls,;;o, CA 94108,2693 41$.'33,1940

TABLE OF AUTHORITIES (CONTINUED)

PAGE

Salazar v. Avis Budget Group, Inc.,
251 F.R.D. 529 (S.D. Cal. 2008) .................................................................................................. 30

Sav-on Drug Stores, Inc. v. Superior Ct.,
34 Cal. 4th 319 17 Cal. Rptr. 3d 906 96 P.3d 194 (2004)....................................................................................................................... 22

Sepulveda v. Wal-Mart Stores,
237 F.R.D. 229 (C.D. Cal. 2006)
aff'd in relevant part,
275 F. Appx 672 (9th Cir. 2008).................................................................................................... 7

Spagnola v. Chubb Corp.,
2010 U.S. Dist. LEXIS 1115 (S.D.N.Y. Jan. 7,2010)................................................................. 22

Tierno v. Rite Aid Corp.,
2006 WL 2535056 (N.D. Cal. 2006) ............................................................................................. 7

Trinh v. JP Morgan Chase & Co.,
No. 07-CV-1666 W(WMC), 2008 WL 1860161 (2008) ............................................................................................................ 23

Vinole v. Countrywide Home Loans, Inc.,
571 F.3d 935 (9th Cir. 2009) ................................................................................................ passim

Wang v. Chinese Daily News, Inc.,
231 F.R.D. 602 (C.D. Cal. 2002) ................................................................................................... 7

Weigele v. FedEx Ground Package System, Inc.,
2010 U.S. Dist. LEXIS 33305 (S.D. Cal. 2010) ........................................................................ 6, 7

Whiteway v. FedEx Kinkos Office and Print Svcs., Inc.,
Case No. 05-CV-02320 (N.D. Cal., Oct. 2,2009) ................................................................... 7,23

STATUTES

29 C.F.R. § 541.102 ........................................................................................................................... 22

OTHER AUTHORITIES

Wage Order 7-2001(1)(A)(I) ............................................................................................................. 22

Wage Order 7-2001 (1)(A)(1)(e) ........................................................................................................ 22

Wage Order 7-2001 (2)(K) ................................................................................................................. 22

RULES

Fed. R. Civ. P., Rule 23 ........................................................................................................... 4,26,30

Fed. R. Civ. P., Rule 23(a)(1) .............................................................................................................. 2

Fed. R. Civ. P., Rule 23(a)(2) .......................................................................................................... 2,5

Fed. R. Civ. P., Rule 23(a)(3) .......................................................................................................... 2, 5

Fed. R. Civ. P., Rule 23(a)(4) .............................................................................................................. 2

Fed. R. Civ. P., Rule 23(b)(3) .......................................................................................................... 2,5

Fed. R. Civ. P., Rule 23(b)(3)(D) ...................................................................................................... 22

DEFT'S MOTION TO DECERTIFY THE CLASS;

MEMORANDUM IN SUPPORT THEREOF

iii.

CASE NOS. C 07 2050 SC and C 07 04012 SC

Case3:07-cv-02050-SC Document188 Filed06/18/10 Page5 of 34

1 NOTICE OF MOTION AND MOTION TO DECERTIFY THE CLASS
2
TO THE COURT, ALL PARTIES, AND ALL ATTORNEYS OF RECORD: 3
PLEASE TAKE NOTICE that on July 23,2010 at 10:00 a.m., in the Courtroom of the 4
Honorable Samuel Conti, Courtroom 1, 17th Floor, 450 Golden Gate Avenue, San Francisco, 5
California, Defendant Dollar Tree Stores, Inc. ("Defendant") will, and hereby does, move the Court 6
for an order decertifYing the class. 7
Defendant's motion is based upon this Notice of Motion and Motion, Memorandum of Points 8
and Authorities, the Declaration of Matthew P. Vandall and all declarations and other exhibits 9
attached thereto, the Declaration of Krista Stevenson Johnson and all depositions a~d other exhibits 10
attached thereto, the Declaration of Pam Wolpa, the Declaration of Jerry Clemens, the Declaration of 11
Charlene Montgomery, the Declaration of Robert Crandall, the Rebuttal Declaration of Robert 12
Crandall, Objections to the Expert Reports of David Lewin, Ph.D., Request for Judicial Notice, oral 13
argument of counsel at the hearing, and all other pertinent papers contained in the Court's files. 14

15 Dated: June 18,2010
16
17
18

/s/ Maureen E. McClain MAUREEN E. McCLAIN LITTLER MENDELSON A Professional Corporation Attorneys for Defendant DOLLAR TREE STORES, INC.

19

20

21

22

23

24

25

26

27

28

LITTLER MENDELSON

DEFT'S MOTION TO DECERTIFY THE CLASS;

A PROf~SSION4t COIIPQRI\TIOM

650 CDhforma Street 20th Floor

MEMORANDUM IN SUPPORT THEREOF

1.

San Fr<lnmto. CA 941082693

4154331940

CASE NOS. C 07 2050 SC and C 07 04012 SC

Case3:07-cv-02050-SC Document188 Filed06/18/10 Page6 of 34

1

MEMORANDUM OF POINTS AND AUTHORITIES

2 I. 3

ISSUES TO BE DECIDED Whether the Court should decertifY a class action of 718 Dollar Tree Store Managers,

4 certified on May 26,2009 under Federal Rule of Civil Procedure, Rule 23(a)(1)-(4) and (b)(3), based

5 on the change in the law since class certification, the continued development of facts showing that

6 individualized issues predominate over common issues and that a class action is not the superior

7 method of trying these claims, and the failure of Class Counsel to present a specific plan for trial.

8 II. 9

SUMMARY OF ARGUMENT AND STATEMENT OF FACTS Dollar Tree Stores, Inc. ("DT") urges the Court to decertify this class of 718 Store Managers

10 managing some 273 retail locations in California for the following reasons: (1) since the Court

11 certified the class, the Ninth Circuit has changed the law regarding class certification; (2) discovery

12 has unearthed new facts and admissions by Plaintiffs demonstrating that class certification is no

13 longer appropriate; and (3) Plaintiffs have failed to set forth any plan to try this case on a class basis

14 that would pass legal muster.

15

On May 26, 2009, the Court issued its Order certifying this case as a class action (Dckt.

16 #107, "Class Cert. Order"). The Court found that while "the work experience of particular [Store

17 Managers] varies considerably," the "legal issues and many of the factual questions are the same for

18 all putative class members." (Class Cert. Order, pp. 12-13.) Further, the Court found that it could

19 rely on the DT Store Manager Position Description and Responsibilities ("Job Description") to 20 determine individual Class Members' ("CMs") exempt or non-exempt status. (Id. at pp. 16-201).

21 The Court concluded that standardized policies and practices supported Class Certification (id. at p.

22 21) ~d noted that the Court "retains the option of decertification." (ld, p. 22-24.)

23

On July 7, 2009, six weeks after the issuance of the Class Cert. Order, the Ninth Circuit

24 decided two cases that altered the legal landscape for certifying class actions in California. In Vinole

25 v. Countrywide Home Loans, Inc., 571 F.3d 935, 945-46 (9th Cir. 2009) (Vinole), the Ninth Circuit

26

27
28
~I;"~~~~O~'~~~;;'~T?~
650 c;~:~~~;',~"'"
San Franmco, CA 941082693 4154331940

1 The Job Description is attached as Exhibit B to the Declaration of David McDearmon filed herewith as Exhibit W to the Declaration of Matthew P. Vandall in Support of Defendant's Motion to Decertify the Class (the "Vandall Dec.").

DEFT'S MOTION TO DECERTIFY THE CLASS;

MEMORANDUM IN SUPPORT THEREOF

2.

CASE NOS. C 07 2050 SC and C 07 04012 SC

Case3:07-cv-02050-SC Document188 Filed06/18/10 Page7 of 34

1 upheld a district court denial of class certification, emphasizing the importance of an individualized

2 inquiry into the way potential class members actually carried out their work. The same day, the

3 panel decided In re Wells Fargo Home Mortgage Overtime Pay Litig., 571 F.3d 953, 959 (9th Cir.

4 2009) (Wells Fargo), finding that the district court abused its discretion in certifying a class when it

5 relied on a uniform exemption policy "to the near exclusion of other factors relevant to the

6 predominance inquiry." On remand, the Wells Fargo district court decertified the class, finding,

7 among other things, that in light of the differences between the class members, representational

8 testimony of the sort proposed by Plaintiffs in this case was an inappropriate method of determining

9 exempt status under California's outside sales exemption. In re Wells Fargo Home Mortgage

10 Overtime Pay Litigation, 2010 U.S. Dist. LEXIS 3132, *24 (N.D. Cal. Jan. 12,2010) (Wells Fargo

11 District Court).

12 In addition to a shift in the law, DT has developed through discovery a robust factual record

13 that supports decertification. These relevant facts are summarized here:

14 1. Plaintiffs have repeatedly admitted that the job duties of CMs varied from week to

15 week and from CM to CM such that one CM cannot speak for any other. In the words of Class

16 Counsel: "Plaintiffs cannot determine whether the duties identified in Defendant's Requests for

17 Admission are categorically exempt or non-exempt" (Vandall Dec., ~, Ex. D, p. 8 (emph. in

18 original), and "They may be exempt during some work weeks and may not be exempt during other

19 work weeks." (Jd., Ex. E, 7:24-25.) Further, Plaintiffs admitted that they:

20

do not know whether all other DT Store Managers would testify they

21

shared [a referenced] job responsibility andlor when they had it, andlor

whether they would describe [it] in the same way [as another

22

CM]. ..." (Jd.,~, Ex. H, 2:24-26 and passim.)

23 In a December 23,2009 letter to the discovery Magistrate, Class Counsel argued they would need to
24 speak with potentially hundreds of CMs to answer RFAs concerning how CMs performed their jobs.
25 (Jd., ~, Ex. J.)
26 2. Discovery regarding Dollar Tree's Certification Process, through which CMs certified
27 that they either did or did not spend more than 50% of their actual work time performing a list of 17
28

liTTLER MENDEl-SON
PROFESSIONAL CORi'OIl.l,lIOH 650 Calif011111 Slleel 20lhFloor

DEFT'S MOTION TO DECERTIFY THE CLASS; MEMORANDUM IN SUPPORT THEREOF

3.

Sail Ffal'lCI'Co, CA

941082693

4154331940

CASE NOS. C 07 2050 SC and C 07 04012 SC

Case3:07-cv-02050-SC Document188 Filed06/18/10 Page8 of 34

1 exempt tasks (the "Certification Process"), also supports decertification. CMs offered conflicting
2
testimony regarding their understanding of and approach to the Certification Process. Defendant's 3
expert, statistician Robert Crandall, analyzed the CMs' certification responses and found, inter alia, 4
that "there is a wide variation across CMs in terms of the percentage of work-weeks certified as 5
exempt." (Exs. 3 through 10 to the Crandall Declaration filed herewith.) Plaintiffs' own expert does 6
not dispute this; he testified that the certifications do not describe "what people spent their time 7
actually doing or how much time they spent doing it." (Lewin, 118:8-17i 8
3. Since May, 2009, Defendant has taken 58 depositions of CMs in this case and in the
9
single plaintiff exemption cases of Fierro v. Dollar Tree and Smith v. Dollar Tree. (Johnson Dec., 10
~5.) Those depositions (together with the seven depositions taken before May 2009) conclusively 11
establish a lack of commonality over such topics as how CMs were trained, how they viewed their 12
jobs, how they performed the 17 duties and responsibilities listed in the Job Description and the 13
Certification Process, and how CMs used the managerial tools available to them. 14
Finally, Class Counsel has not presented a specific plan as to how this case can be tried so as 15
to satisfY Rule 23' s requirements. Plaintiffs must concede that there are individuals in the class who 16
qualifY for the exemption,3 and, in the words of Judge Patel in Wells Fargo District Court, supra, at 17
*24 (citation omitted), it is not possible to certifY "an overbroad class containing both allegedly 18
injured and uninjured parties" as there is no viable way to separate the two groups. 19
III. LEGAL ARGUMENT 20
Plaintiffs bear the burden of proving that class certification remains appropriate. See 'Marlo 21
v. United Parcel Service, Inc., 251 F.R.D. 476, 480 (C.D. Cal. 2008) (decertifying class after
22

23
24
25
26
27
28
UTTLER MENDELSON PROFESSIONAL CORPORATION
650 Call1ornUI Slrul 20lhFIoor
San FII:lMISCO, CA 941062693 4154331940

2 Relevant excerpts of all deposition testimony, including the testimony of CMs and the parties' experts, are attached to the Declaration of Krista Stevenson Johnson in Support of Defendant's Motion to DecertifY the Class ("Johnson Dec.") as Exhibits 1-60 and arranged in alphabetical order by last name. For ease of reference, DT references each deponent by last name in this briefing rather than the corresponding exhibit number within the Johnson Declaration.
3 See, e.g., Maldonado, 112:17-113:2 ("I spend my time doing my manager paperwork, and my coaching and training process, 70 percent"), see also Black, 146:4-24 ( "I don't do anything without trying to train somebody to do something else"); Avila, 119:12-25 (testifYing that he completed the certifications honestly because he saw his role as predominately managerial).

DEFT'S MOTION TO DECERTIFY THE CLASS; MEMORANDUM IN SUPPORT THEREOF

4.

CASE NOS. C 07 2050 SC and C 07 04012 SC

Case3:07-cv-02050-SC Document188 Filed06/18/10 Page9 of 34

1
2
3
4 5 6 7 8 9 10 11 12
13 14
15 16
17
18
19
20
21
22 23
24 25 26 27 28
LITTLER MENDELSON
PROFESSIONAL CO~f'O~ATION
650 CallrQlni~ Slre411 201llFIooI
San Frllncls(:o, CA 941082693 4154331940

subsequent discovery, motion practice, and trial preparation revealed that the requirement of predominate common issues was not satisfied). If Plaintiffs cannot prove a sufficient degree of homogeneity in the performance of their job duties, the Court must decertify the class and allow Plaintiffs' claims to proceed individually. The facts developed in discovery since the issuance of the Class Cert. Order demonstrate that the Plaintiffs cannot establish the commonality or typicality requirements of Rule 23(a)(2) and (3), and they carinot show that common issues predominate over individual issues. Accordingly, a class action is simply not a superior method of adjudicating Plaintiffs' claims. Fed.R.Civ.P., R. 23(b)(3).
A. New Case Law Decided Since Class Certification Compels Decertification. 1. Vinole And Wells Fargo Have Changed The Relevant Legal Analysis.
Since the date of the Class Cert. Order, the Ninth Circuit has decided two cases bearing on the predominance analysis in exemption cases. See Vino/e, supra, 571 F.3d 935 at 944; Wells Fargo, supra, 571 at 959. In Vinole, the Ninth Circuit found that, where the plaintiffs' claims require a "fact-intensive, individual analysis of each employee's exempt status", the District Court appropriately declined to certify the class. In Wells Fargo, the panel emphasized that where the applicability of an asserted exemption hinges on how an employee actually performs his or her work, the employee's job duties, not an exemptionpoiicy, must control in deciding whether common issues predominated. Wells Fargo, 571 F.3d at 959.
On remand, the District Court in Wells Fargo denied class certification of the claims of home mortgage consultants under the outside sales exemption. The court identified "three principles" from Wells Fargo and Vinole that mandated decertification: (1) "an employer's uniform exemption policy is only one of many factors" in the predominance analysis; (2) employer asserted exemption defenses are "fact-intensive" requiring the court to "weigh the complexity of that inquiry in the predominance calculus"; and (3) "when an employer asserts an exemption defense ... the resolution of which depends upon how employees spend their time at work, unless plaintiff proposes some form of common proof, such as a standard policy governing how and where employees perform their jobs, common issues of law or fact are unlikely to predominate." In re Wells Fargo Dist. Ct., 2010

DEFT'S MOTION TO DECERTIFY THE CLASS; MEMORANDUM IN SUPPORT THEREOF

5.

CASE NOS. C 07 2050 SC and C 07 04012 SC

Case3:07-cv-02050-SC Document188 Filed06/18/10 Page10 of 34

1 2 3 4 5 6 7 8 9 10 11 12 13
14
15
16 17
18 19 20 21 22 23
24 25 26 27 28
LITTLER MENDELSON PROFESSIONAL C(HIPORATIO~
650 California Street 20th Floor
San Fflll'l(;l$¢('I, CA
9~108 2693 415 4JJ 19~O

U.S. Dist. LEXIS 3132 at *20.
Weigele v. FedEx. Ground Package System, Inc., 2010 U.S. Dist. LEXIS 33305, *22 (S.D.
a Cal. 2010), a recent exemption case in which the district court decertified class of over 500
managers, is directly on point. In Weigele, the plaintiffs alleged that FedEx created standardized
policies and procedures, such as manuals, task lists, and work flow processes, for many elements of
their operation, which showed that the managers "perform a finite set of uniform duties". Id. at *19.
The plaintiffs also alleged that targets set by FedEx required the managers at issue to perform
physical tasks to meet them. Id. at *4. Finally, the plaintiffs cited to studies FedEx had conducted,
which caused FedEx to conclude that "Too much of our management's time is spent loading" and
"Focus is to free up Managers from loading." Id On these facts, after Wells Fargo and Vinole, the
court granted FedEx's motion to decertify the class. Id. at *32. The Weigele court found:
. . . Defendant's common processes and training are not overly supportive of a finding that common issues predominate. For example, the training materials provide instruction regarding the tasks a Dock Service Manager would perform.... This guidance, however, does not appear to instruct Plaintiffs to perform non-exempt tasks and would provide no help to the Court in determining the actual work mix performed by Plaintiffs. The common processes are similar, speaking to the small detail of particular tasks, but not how managers were to balance their responsibilities.... Nor has the Court been able to find anything in these documents which instructed Plaintiffs to do a clearly non-exempt task, such as package-handling. And to the extent Plaintiffs performed indirect work as a consequence of the strictures of Defendant's policies, that is an individual issue because it requires inquiry into situations inherently specific to the particular Dock Service Manager. /d. at *23-24.
Weigele illustrates the more focused and individualized analysis required in class
certification cases after Wells Fargo and Vinole. See also Mendoza v. Home Depot, USA, Inc., 2010
U.S. Dist. LEXIS 13025, *23, 31 (C.D. Cal. Jan. 21, 2010) (denying certification in spite of the
plaintiffs' contention that all class members followed the same "standard operating procedures");
Pablo v. Servicemaster Global Holdings, Inc., 2009 WL 2524478, *6 (N.D. Cal. 2009) (class
certification not appropriate where parties submitted class member declarations showing variation in
how they spent their time); Howard v. GAP, Inc., 2009 U.S. Dist. LEXIS 10596, *11-13 (N.D. Cal,
Oct. 29, 2009) (individual issues predominated where the alleged "common" policy was a lawful

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2
3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21
22
23 24 25 26 27 28
UTTLER MENDELSON PHOfESSIOHAl CORPOHATION
650 Caillofnia SHBBt 201hFIoor
San FranCISOO, CA 941082693 4154331940

written policy that plaintiffs claimed was modified by an unwritten unlawful policy); Whiteway v. FedEx Kinkos Office and Print Svcs., Inc., Case No. 05-CV-02320 (N.D. Cal., Oct. 2, 2009) (Whiteway 2009 Order) (decertifying class action on grounds that plaintiff could not show how the testimony of 10-20 class members could be extrapolated to the class); RJN, Ex. D.
2. Legal Authority Cited In The Class Cert. Order Should Be Re-Evaluated
In Light Of The Intervening Change In Law.
Certain authority cited in the Class Cert. Order must be re-analyzed in light of Wells Fargo, Vinole and their progeny. For example, Tierno v. Rite Aid Corp., 2006 WL 2535056 (N.D. Cal. 2006) and Alba v. Papa John's USA, Inc., 2007 U.S. Dist. LEXIS 28079 (C.D. Cal. 2007), were decided before Wells Fargo and Vinole, and those cases relied heavily upon the reasoning in Wang v. Chinese Daily News, Inc., 231 F.R.D. 602 (C.D. Cal. 2002), which was specifically rejected by Vinole. See Vinole, 571 F. 3d at 946, n. 14 ("we do not embrace any dispositive reliance in [Tierno or Alba] on the rule from Wang',).4 Further, Whiteway v. FedEx Kinko's Ole. and Print Svcs., Inc., 2006 WL 2642528, *1 (N.D. Cal. 2006), also cited in the Class Cert. Order, no longer supports class certification because, in reliance on Vinole, the Whiteway court later decertified the class, finding whether plaintiffs were non-exempt could only be decided by individualized inquiry and not representative testimony. Whiteway 2009 Order at *5.5
Under the new state of the law, common policies alone do not warrant class certification if they do not show the actual work mix of all individuals in the putative class. Weigeie, 2010 U.S. Dist. LEXIS 33305 at 23-24; see In re Wells Fargo, 571 F. 3d at 959; Vinole, 571 F.3d at 946.

4 Krzesniak v. Cendant Corp., cited in the Class Cert. Order, should not compel adherence to that Order. The Krzesniak Court found that standardized written procedures, and the small size of the class and small number of work locations (no more than 76 employees in 37 locations), showed that a class action would be manageable and appropriate. Krzesniak v. Cedent Corp., 2007 U.S. Dist. LEXIS 47518 (N.D. Cal. 2007). Here, the class is more than nine times larger and there is no evidence that CMs uniformly followed DT policies at the 273 DT stores.
5 Similarly, Sepulveda v. Wal-Mart Stores, 237 F.R.D. 229 (C.D. Cal. 2006) aff'd in relevant part, 275 F. Appx 672 (9th Cir. 2008), discussed in the Class Cert. Order, is also applicable to the extent that it supports the mandate of Vinole and Wells Fargo that a court should look beyond the existence of standardized policies and procedures and analyze what the class members actually do III determining whether class certification is appropriate in an exemption case. 237 F.R.D. at 248.

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1

B. New Facts Developed Since The Class Cert. Order Compel Decertification.

2

1. CMs Varied Approaches To And Understanding Of The Certification

Process Requires Decertification. 3

4

Pursuant to the Class Cert. Order, the "most convincing evidence" supporting class treatment

5 was the Certification Process. (Class Cert Order, pp. 16-20.) However, new evidence developed

6 since the Class Cert. Order, including Plaintiffs' admissions, DT's expert analysis, and CM

7 testimony, shows that the Certification Process did not create uniform work experiences among

8 CMs, and it provides this Court with no help in determining the actual work performed by CMs in

9 this case. 10 11

a. Plaintiffs Admit That The Certification Process Does Not Provide A Valid Description Of What The CMs Do.

12

Plaintiffs admit that the Job Description, to which CMs certified compliance or non-

13 compliance each week, does not provide a complete picture of the CMs' job duties:

14

•

When asked to admit or deny that each of the 17 duties and responsibilities in the Job

Description were exempt, Plaintiffs objected that they would have to "speculate" as to

15

the exempt nature of each job duty as applied to the Class. (Vandall Dec., ~, Ex. B,

2:9-10 and passim); 16

17

•

In support of Plaintiffs' objections to the RFAs, Class Counsel argued, "... inherent

in the structure of these RFAs is the presupposition that [the Certification Process]

fully expresses what Store Managers' do from day to day and describes duties that

18

would be found to be legally exempt. Plaintiffs do not agree with this assumption."

(Vandall Dec.,~, Ex. D, p. 7.); 19

20

•

Class Counsel also argued, "each of these RFA are also overbroad on a temporal

basis since, for example, the needs of a particular store manager change from pay

period to pay period and, if Defendant is correct in this regard, could also change

21

depending on 'variations in store size, sales volume, products offered by each store,

employee complements, supervisory styles and merchandizing approaches.' [citing

22

Defendant's Class Certification Opposition] Consequently, Plaintiffs cannot

determine whether the duties identified in Defendant's RFA are categorically exempt

23

or non-exempt." (Id., p. 8 (emph. in original).);

24

•

In a telephonic hearing with Judge Spero, Class Counsel stated that CMs "may be

exempt during some work weeks and may be not exempt during other work weeks."

25

(Id, Ex. E, 7:24-25.);

26

•

In the same hearing, Class Counsel argued that "[w]e are talking about managers that

... are doing a hundred things, perhaps, during a given day." (Id, 13:14-17.); and

27

28

•

When Plaintiffs finally responded to DT's RFAs, they qualified each answer by

LITTLER MENDelSON f>kof£3SIONII~ CORPORATION
650 Caillorol" SHeet 20lhFIoor

DEFT'S MOTION TO DECERTIFY THE CLASS; MEMORANDUM IN SUPPORT THEREOF

8.

San Francisco, CA

94108.2693

4154331940

CASE NOS. C 07 2050 SC and C 07 04012 SC

Case3:07-cv-02050-SC Document188 Filed06/18/10 Page13 of 34

1

defining the specific duty and responsibility at issue as being comprised of as many as

48 discrete tasks. (Vandall Dec., ~I, Ex. F, 2:15-3:9 andpassim).

2

3

Further, Plaintiffs expert, David Lewin, admitted that the "the Certification Forms do not

4 provide any information about the work activities the SMs performed or the amount of time they

5 spent performing such activities...." (Vandall Dec., ~GG, Ex. JJ (Lewin Rebuttal, ~1O).) Lewin

6 testified that the 17 duties and responsibilities are "managerial" (Lewin, 57:3-14), but also "overly

7 broad ... in terms of knowing what people do in their work." (Lewin, 52: 5-15; Vandall Dec., ~FF,

8 Ex. II (Lewin Dec., ~8).)

9

Because not even Plaintiffs (or their expert) agree that the Job Description can be used to

10 determine whether the CMs' job duties are "categorically" exempt or non-exempt, there is no basis

11 to use the Job Description or the Certification Process as evidence supporting Class Certification.

12

h. Expert Analysis Of The Certification Process Warrants

Decertification Of The Class.
13

14

DT's expert Robert Crandall analyzed certification responses, which comprised 29,431

15 workweeks of the Class Period. (Crandall Dec., ~15.) Approximately 62% of the class certified that

16 they spent the majority of all workweeks in managerial tasks, approximately 2.5% reported that they

17 never spent the majority of their time performing managerial tasks, and about 35% fell somewhere in 18 between. (ld., ~22-23, Exs. 2, 3A, 3B, 3C.) Thus, there is a large amount of variation in the 19 responses to the certification forms.

20
21
22
23
24
25
26
27
28
LJHLER MENOELSON PROfESSION~~ CORPORATION
650 California Street 20th Floor
San FlahCI~t;o, CA 941082693 4154331940

There were measurable differences in responses between CMs, stores, and districts during the Class Period. (Crandall Dec., pp. 10-27.) An evaluation of the percentage of weeks that CMs gave "yes" answers on their certification forms shows variations on a weekly basis even among CMs in the same districts and regions. (ld., ~~24, 28, Exs. 4A-4C, 7.) Furthermore, percentages of "yes" responses changed when CMs transferred from one store to another, suggesting store characteristics influenced the amount oftime a CM spent in exempt duties. (ld., ~~24-27, Exs. 5A-5B, 6.) Crandall also noted changes in "yes" responses when CMs worked under different District Managers, suggesting that DM management styles may have affected manager responses. (Id., ~~29-31, Ex. 8.)

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1 Crandall also noted a correlation In sales volume per associate with differences in "yes"

2
certifications, which suggests that store sales activity and customer flow are related to the

3
proportions of reported exempt and non-exempt weeks. (ld., ,-r,-r39-40, n. 16, Ex. 9.) Finally,

4 Crandall's analysis also shows that "yes" responses varied based on unique factors, which included

5 proportion of full-time staff, customer flow (measured as sales volume per associate), whether a

6 store was understaffed, and whether a store had experienced employee loss. (Id., ,-r,-r38-47, Ex. 10.)

7 Crandall's analysis reveals that not only are there differences in responses between CMs, but

8 that those differences can be tied to unique and changing characteristics that were faced by the CMs

9
during the class period. (See id., ,-r,-r33-35.) Given the variation in responses among CMs in varying

10 workweeks during the class period, the Certification Process cannot support continued class

11 certification.

12

c. CMs' Testimony Shows That The Certifications Are Not Evidence

13

Of Common Job Duties.

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
LITTLER MENDELSON PROFESSIONAL CORPORATION
650 California Slreel 2011, Floor
S.n francisco, CA 941082693 415;331940

Finally, as illustrated by the Chart below,6 CMs had different interpretations and approaches

to the Certification Process. CM Approach To The Certifications

Evidence

CMs responded honestly and understood that a "yes" response on the certification form meant that they spent more than 50% of their actual work time performing the managerial tasks listed in the job description.

Buitron, 183:4-185:10; Patrick, 173:6174:25; Toto, 193:17-194:10,315:7-12; Black, 145:7-146:9, 182:19-183:3; Maldonado, 114:2-116:4; Huntsman, 155:13-158:21; Faria, 19:10-24,23:7-9; Hayes, 14:25-15:7, 17:9-13; Hodge, 12:25-16:4; Moreno, 257:16-258:20; Kauhn, 177:9-178:6; Schneider, 200:19-201:23,304:16-305:4; Messer, 129:13-22; Moore, 20:9-21:24, 22:1113; Pineda 998:14-100:11; Musk, 27:929:3.

CMs completed the certifications without significant thought or attention.

Holland, 241 :16-24,253:1-254:3; Avila, 119:12-125.

CMs honestly completed the certifications based on a misunderstanding of the Certification Process and now believe that their certifications were not accurate as submitted.

Chapman, 11 :14-22, 12:12-13:3; 13:59; 14:2-17:20; Reyes, 162:2-164:11, 167:1-10,171:1-12; Sanders, 85:1587:14; Hawley, 23:20-27:9.

CMs were not truthful when they submitted their

Armstrong, 25:17-27:6; Ayala 133:21-

6 All of the factual summari~s of CM testimony in this brief are specific to the Class Period.

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Case3:07-cv-02050-SC Document188 Filed06/18/10 Page15 of 34

1

CM Approach To The Certifications

2 certifications for various reasons.

3

4

5

Evidence
135:20; Dougherty, 68:3-70:4; Fierro, 219:6-14; Lugo, 25:6-25; Martinez, 51:25-52:20; Mayhew, 127:11-129:16; Penunuri, 38:12-15, Walton, 41:543:10,48:16-20; and Whitton, 23:2526:6.

6

The varied testimony of CMs regarding the Certification Process amply demonstrates the

7 need for individualized inquiry and, hence, the Court should decertify the class.

8

2. Decertification Is Warranted Because Of The Different Experiences And

Job Duties Among Dollar Tree Store Managers. 9

10

During the Class Period, Store Managers at DT worked independently without regular on-site

11 supervision. One Store Manager was responsible for each store and was the only overtime-exempt 12 employee in each store.7 (Vandall Dec., ~, Ex. W (McDearmon Dec., ~10).) Every CM reported

13 to one District Manager ("DM") who was responsible for and traveled between 8-15 stores in his or 14 her district. 8 (Id., ~10.) The CMs were paid a salary and were eligible for bonuses. (Id., ~9.)

15 However, there were numerous differences among the 273 DT stores in California, and among the 16 CMs during the Class Period. Some Dollar Tree stores in California were small operations, roughly 17 6,000 to 7,000 square feet, while others were 25,000 or more square feet. (See Vandall Dec., ~,

18 Ex. Y (Jacobson-Allen Dec., Ex. A), showing unique physical characteristics, including number of

19 end caps, size of stockroom, number of deliveries, number of payroll hours, and inventory per square

20 feet of some stores managed by CMs; RJN, Ex. B.) In addition, stores had between nine and 80

21 hourly associates during non-holiday periods, and between one and five AMs. (Id.; see also Toto,

22 112:21-24.)

23

CMs had a variety of different managerial experiences during the class period. Seventy-nine

24

25
26
27
28
LITTLER MENDELSON PROfUSIO~AL CORPOkATIOH
650 C,llfOlnllil Street 20lhFIooi
San Francillco. CA 94108.2693 415433 1940

7 In some instances, a DM had an office in a store, but the DM was not in charge of the store and was rarely present; rather, DMs traveled between the stores in their districts. See, e.g., Cross, 26:224,27:18-22. A few CMs testified, however, that DMs assumed control of their stores during their visits. (See e.g., Avila, 66:23-68:21; Hall, 123:20-124:22; Patrick, 69:24-70:16, 71:5-12.)
8 Store Managers who were also DSTs also had a "dotted line" reporting relationship to the Regional Training Manager regarding their training responsibilities. (Hernandez, 12:20-13: 1.)

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CASE NOS. C 07 2050 SC and C 07 04012 SC

Case3:07-cv-02050-SC Document188 Filed06/18/10 Page16 of 34

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
LITTLER MENDELSON P~OFES$IOH ...t CO~'OIU1IQ~
650 California SHeet 201hFIoor
San FrIlMI&CO, CA 941082693 4154331940

CMs received bonuses for being District Store Trainers ("DSTs") during the class period. (Montgomery Dec., ~3, Ex. 1.) Some CMs managed two stores at once during the class period. (See e.g., Banks, 110:22-111 :14; Chin, 143:6-17; Gonzalez, 141 :6-18; Hodge, 143:16-144:20; James, 144:24-145:16.) Other CMs opened new stores and testified that they performed different job tasks during the weeks before their stores were open to the public. (See, Dougherty, 195:20-21, 204:25206:16; Faria, 111:7-18; Hamman, 23:16-24:8.)
The quality and ability of a store's freight team impacted CMs' job duties and their ability to delegate physical tasks. CM Schneider testified that the quality of his freight crew affected his job duties with respect to the amount of time he spent on training and scheduling as well as requiring him to pick up the slack of underperforming associates. (Schneider, 66:2-67:24.) CM Buitron testified that having a poor freight manager "definitely" affected her job duties because she would have to focus on the tasks the Freight Manager should be performing but was not getting done. (Buitron, 43:6-45:22.)9
The management styles of the DMs also affected the manner in which CMs performed their jobs. For example, CM Lugo had two DMs during the Class Period, Mike Spinuzzi, who "was very aggressive, straightforward" and "a screamer" (Lugo, 79: 1-1 0), and Marita Henton who "was more manageable" but "real wishy-washy". (ld.,80:2-12.) Per Lugo, DM Henton "had her own ideas that were outside, for example, the monthly planner or the sales planner and she would make [Lugo] do the work to conform to her ideas." (ld.,81:24-82:6.) Further, DM Henton would require Lugo to physically "move the whole store" around before a corporate visit while DM Spinuzzi did not. (Id., 80:3-18). DM Spinuzzi, however, required Lugo to leave her store to help out at other DT Stores by

9 See also Cross, 16:13-20, 19:10-20:14 (spent more time monitoring productivity and re-training when he had an underperforming freight team); Dougherty, 362:1-21, 364:10-24 (her freight team spoke Spanish and she did not which affected her performance of freight related tasks). The quantity and quality of Assistant Managers and hourly associates also impacted CM job duties. (See e.g., Clemens Dec., ~~6, 7 (various factors, including store personnel, cause his job to vary over time); Chin, 25:24-27:14, 29:24-30:12; 79:19-82:13 (testifying that these factors required her to spend more time on training and physical tasks); Holland, 91 :6-21 (testifying that working with associates with stronger innate abilities makes the Store Manager's job easier); Mayhew, 66:1-15, 69:9-22 (testifying that he spent more time on training and that he "would have to put in [more time] to do what had to be done").)

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1 performing stocking tasks for at least 10 eight-hour days while DM Henton never made Lugo do
2
that. (Id., 116:15-118:11.) 3
Similarly, CM Avila worked for DMs Terrie Peters and Woody Clifford during the Class 4
Period. DM Clifford visited Avila's store dailylo because it was his "home store". (Avila, 53:125
16.) He would literally "hang out" in Avila's store (id., 54:3-6) and would "tell [Avila's] people 6
what to do." (id., 67:8-19.)11 DM Peters, in contrast, visited Avila's store twice a week, never 7
assumed control of the store, and did not have much involvement in Avila's day-to-day decision8
making. (Id., 54:19-24, 68:2-6, 70:18-23.)12
9 Avila also worked as a DM during the Class Period, and he testified that he had a "more
10 hands-off style" than DM Clifford. (Avila, 69:16-70:1.) DM Avila recognized that the store
11 manager was the "leader of the store" and DM Avila "helped where [he] was needed." (Avila,
12 69:21-23.) DM "Clifford would like to actually go into the stores and throw freight and
13 merchandise, where [DM Avila] had more of a delegation style." (Avila, 70:2-14.)
14 The record shows important differences in CM duties and experiences even among CMs who
15 managed the same store. For example, CMs Avila, Fierro and Toto all managed Store No. 1254 in
16 San Jose at different times during the Class Period. (Avila, 28:18-22; Fierro, 113:20-114:6; Toto,
17 11 :21-13:11.) The chart below reflects certain of their varied experiences managing that store:
18

19

20
21
22
23
24
25
26
27
28
LITTLER MENDELSON PROFESSIOH.l.L COMPOUl!ON
650 Callfolnla $UUI 20thF!oor
Sao FrancIsco, CA 941082693 4154331940

10 CMs reported varied levels of contact with their DMs throughout the Class Period. For example, some CMs saw their DMs on a daily basis. (Armstrong, 100:9-14; Avila, 53:12-16.) Other DMs visited CM stores on a weekly, bi-monthly or even monthly basis. (Ayala, 46:5-11 (2 times per month); Deubert, 25:7-10 (same); Buitron, 86:8-18 (once a week); Doubleday, 46:11-24 (once a month).) Other CMs reported that the amount of time DMs spent in their stores during those visits ranged from 10 minutes to all day. (Gomez, 139:10-17 (DM visits ranged from 10 minutes to 5-6 hours); Durston, 23:12-24:2 (30 minutes to all day); Gore, 60:14-61:2 (1 to 8 hours per visit).)
11 Avila complained to DM Clifford about this and DM Clifford changed his behavior. (Avila, 67:20-68:1.) 12 Other CMs had similarly varied experiences. For example, Pineda believed that his DM was 100% in control of his store. (Pineda, 30:5-7, 30:18-20, 36:20-37:16, 40:13-42:5, 44:24-45:11.) Other CMs made the day-to-day decisions at their stores and would consult with their DMs about issues on an as needed basis. (Deubert, 25:16-24; Chapman, 81:13-82:4, 88:25-89:10, 91:12-93:22, 99:4-25; Huntsman, 70:6-71:14, 73:5-74:10, 76:6-7:38; Corona, 33:9-11, 58:19-59:6, 65:16-23, 66:5-9; Buitron, 86:8-18, 90:3-92:13; Hamman, 69:23-70:15, 81:7-12, 81:14-82:5, 82:9-18.)

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Case3:07-cv-02050-SC Document188 Filed06/18/10 Page18 of 34

1
2
3 4 5 6 7 8 9 10 11 12 13 14
15 16 17 18 19 20
21
22
23 24 25 26 27
28
LITTLER MENDELSON
PKOHSSIQNAlCORPQflATION
650 CalifOf I'll a SllElol 20th FlolH
San FfIlI'lCISCO, CA 941082693 4154JJ1940

Store 1254 Issue

CMAvila

CMFierro

CMToto

No. of Subordinate Employees

30 associates, 5 full-time Assistant Managers. Avila, 42:743:3.

35-36 associate during the non-holiday time period and up to 50 associates during the holiday time period. Fierro, 123:13-21.

Approximately 80 associates during the nonholiday time period and 92 employees during the holiday time period. Toto, 112:21-24, 113:3-5.

Scheduling

Before COMPASS came out, Avila could do the schedule in 2 uninterrupted hours; with COMPASS, it took 1 hour. Avila, 103:1-24.

It took Fierro 15 minutes to set up the schedule every week on COMPASS. She spent 30 minutes per week in
scheduling as of March 2006. Fierro, 163 :24164:2,213:19-23.

Toto spends 8 hours per week on scheduling during the non-holiday time period and 12 hours per week on scheduling during the holiday time period. Toto, 143:13-24, 180:5-9.

Ordering

Avila ordered twice a week. His day-to-day experience changed based on the merchandise mix. Avila, 95: 19-96: 12, 112:4-19. He could ask permission to order items he thought would sell well at his store and sometimes he was given such permission. Avila, 113:20-114:17.

Fierro ordered merchandise 3 times per week, ordered 50% of the merchandise in San Jose, and spent about 3 hours per week ordering. Fierro, 167:1-9, 167:14-15, 177:3-7. Fierro testified that she "decide[s] how and when to run certain promotions in [her] store." Fierro, 195:1721.

Toto spends about an hour a day on ordering, felt free to order whatever he wanted and found himself "requesting [a] thousand cases of special products all the time." Toto, 111 :519,204:13-23.

Training

Avila was a DST at Store 1254. Avila, 43:15-44:4; 46:24-47:2.

Fierro was a DST and she trained MITs during the last 4-5 years of her employment. Fierro, 129:7-17. When she had MITs in her store, the MITs were with her 100% of the day. Fierro, 148:17-23.

Toto was never a DST and did not train new Store Managers at Store 1254. Toto, 23:11-14.

Use of Monthly / Seasonal Planners

All the end caps in Store 1254 were covered by the recommended guidelines in the monthly planners. Avila, 125:25-126:5.

The monthly planner had to be exact. Every floor stock, sign and end cap had to be exact. Fierro, 187:9188:10.

Toto exercises discretion with respect to 70% of all end caps. Toto, 83:15-18.

Certification Process

Avila completed the certifications honestly because he saw his role as predominantly

Occasionally, Fierro was honest in her certifications; but she was not honest most of

Toto honestly completed his certifications. Toto, 193:17-194:10,315:7-12.

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CASE NOS. C 07 2050 SC and C 07 04012 SC

Case3:07-cv-02050-SC Document188 Filed06/18/10 Page19 of 34

1 Store 1254 Issue

CMAviia

CMFierro

CMToto

2

managerial. He always the time. Fierro,

did managerial work. 219:11-14.

3

Avila, 119:12-25.

4 Unloading Trucks
5
6
7 8
Ringing a Cash 9 Register 10 11

Avila supervised the freight coming off the truck and did not physically move it himself. Avila, 90:114. Avila did not do much stocking at Store 1254. Avila, 89:16-25.

Fierro spent a minimum of 18 and a maximum of30 hours per week dealing with freight deliveries and had to spend some time physically unloading the trucks. Fierro, 189:14-20,191:4-7.

Toto unloaded only one truck at Store 1254. Toto, 241:19-242:15. He regularly supervised the process by assigning tasks to the freight team rather than doing the tasks himself. Toto, 229:2231: 1.

If there was no one else to cashier, Avila would jump on a register, but that happened with very limited frequency. Avila, 90:18-91:5.

Fierro, spent from anywhere between 4-24 hours per week working on the cash register. Fierro, 214:10-20.

Toto rang a register approximately twice per week for 20 minutes at a time. Toto, 32: 17-25, 304:8-20.

12

13

The interpretations of the tasks within the Job Description also require an individualized

14 inquiry. For example, CM testimony on the subject of supervision (Task No. 1 in the Job

15 Description) demonstrates wide variance in either CM comprehension of the task or CM

16 performance of the task: CM Testimony on Supervision
17 Constantly involved in supervision of 2 or more
18 associates in performing the 17 duties and responsibilities listed in the job description.
19

20

21

22

Estimates that approximately 80% of the time is spent supervising store associates.

Evidence
Banks, 30:10-13; Gonzalez, 31:7-9; Hayes, 19:18-21; Messer, 40:21-41:5; Moreno, 260:6-261: 22; Durston, 36:737:23,59:23-60:5; Huntsman, 150:424; Hamman, 51 :9-52:4; Maldonado, 62:8-63: 25, 116:14-15; Corona, 33:1823; Gonzalez, 29:12-14,31:7-9; Dougherty, 225:2-4, 229:23-230:23.
Faria, 29:22-30:5, 31 :25-32:6; Patrick, 175:10-176:7

23 Spent more than 50% of the actual work time each week Buitron, 185:17-186:8. supervising two or more store associates at each store.

24 CM supervised ordering, receiving, stocking and pricing Moore, 37:2-38:3, 68:14-24.

25

"properly" by getting directly involved in the tasks themselves; hence, the level of supervision needed from

26 the CM changed from day to day. Estimates that CM spends between 2 and 3 hours in an 8 Schneider, 210:17-25.

27 hour day supervising store associates.

28

LITTLER MENDELSON
P~OFESStONAl C(')ftPOAATtON
650 Caltforma Slreel
201f\Floor San ~ranct$cP. CA
941082693 41&4331940

DEFT'S MOTION TO DECERTIFY THE CLASS; MEMORANDUM IN SUPPORT THEREOF

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LITTLER MENDELSON PItOf(SSIOIIlAL CORPORATlO~
650 Callfonll& Street 20lhFIoor
San Franels~o. CA 94108.2693 41~ 433,1940

The Court should decertify the class based upon the variations in work experience, DM styles, supervisory authority, and store-level differences in duties.
3. DT's Training Program Does Not Show The Type Of Common Experience Necessary For Class Certification.

In the Class C?rt. Order, the Court found that "Dollar Tree's training program for SMs is

standardized throughout California." (Class Cert. Order, 20:5-6.) The evidence adduced since the

date of the Class Cert. Order belies that finding: of the 718 CMs, only 451 (62.8%) were coded as

participating in the Management In Training ("MIT") program. (Montgomery Dec., ~4, Ex. 3.)

Only 51 CMs were coded as participants in "Career Path" training, which was a shorter training

program for CMs promoted from within DT. (Montgomery Dec., ~4, Ex. 3; Hernandez, 125:5-22.)

However, the MIT program itself cannot be considered "standardized," because DSTs, themselves

store managers, trained CMs at individual stores, without supervision, performing functions that

were necessary for the operation of the stores in which they trained. (See, e.g., Corona, 48:11-49:9;

Diehl, 13: 16-14:5; Dougherty, 56:16-57:17; Huntsman, 27: 19-28: 16; Penunuri, 18:2-19: 16.)

Further, deposition testimony shows a significant variance in training experience:

Class Member Training
CMs did not participate in the MIT Program.

Evidence
Buitron, 26:2-10; Durston, 22:25-23:4; Faria, 13:12-16; Gonzalez, 46:24-47:3; Hamman, 134:19-22; Lugo, 73:10-12; Chin, 23:18-24:1; Moore, 77:18-20; Navarro, 41:24-42:1; Sanders, 25:22-26:23; Whitton, 66:9-11.

CMs participated in an 8week MIT Program

Ayala, 13:13-20; Banks, 9:14-16; Black, 12:7-17; Corona, 48:11-15; Doubleday, 15:13-15, 16:21-24; Hayes, 7:13-19; Maldonado, 11 :3-5, 15:15-23; Mayhew, 7:10-19; Messer, 14:7-12; Patrick, 19:6-20; Pineda, 9:14-23; Reyes, 8:1-16, 113:3-11; Sarefield, 65:2-6; Schneider, 18:13-21, 19:3-8; Toto, 12:17-23; Trinidad, 13:4-10, 60:11-12; Walton, 13:18-22.

CMs participated In an MIT Program that was less than 8 weeks.

Cruz, 28:12-13, 28:21-29:3; Diehl, 10:3-5 (4 weeks); Dougherty, 14:2-14 (6 weeks); Huntsman, 27:19-24, 28:6-19 (2 weeks); Hodge, 54:11-19 (6-8 weeks); Martinez, 25:20-26:5 (less than 6 weeks); Penunuri, 17:9-11, 18:2-4 (2 weeks); Valli, 10:5-9 (4-5 weeks).

CMs classified as MITs Gore, 12:10-23 (1 year); Runnings, 23:18-23 (7 months). for more than 8 weeks.

The assertion that all CMs received standardized training at DT is no longer supported by the record.

DEFT'S MOTION TO DECERTIFY THE CLASS; MEMORANDUM IN SUPPORT THEREOF

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4. The Class Members' Varying Use Of Tools Provided By Dollar Tree To

Ensure Independent Decision~Making Shows Differences In Their Job

2

Duties.

3

In the Class Cert. Order, the Court cited to DT's "standardized practices and procedures,"

4 including common management tools to assist with management tasks such as scheduling, ordering

5 and displaying products, and HR functions, as further evidence supporting Class Certification.

6 (Class Cert. Order, p. 21~22.) The record shows that these tools did not result in a sufficient level of

7 homogeneity among CMs to warrant continued class certification.

8

a. CMs Used The Management Tools In A Variety Of Ways.

9

CM testimony regarding variances in use of certain tools contradicts the notion that DT's

10 tools resulted in uniformity in work activities. CMs testified repeatedly that there was no typical day

11 and no way to determine what they were doing or for how long in a typical work weekY In

12 addition, CMs testified to using DT's scheduling tools, planners, and other materials in different

13 ways. (See Crandall's analysis of this issue at Crandall Dec., pp. 38-44.) CM testimony shows that

14 while many of the CMs testified that they used COMPASS for scheduling cashiers only, there are

15 also CMs who testified that they did not use COMPASS and instead hand-wrote their schedules.

16 (See e.g., Hansen, 58:19-60:18; Penunuri, 112:5-13; Holland, 47:18-25.)

17

18 l3 Many CMs testified that there was no typical day (Valli, 35:25-36:10 (every day is a different

19

day); Durston, 107:9-18 (her days were not routine; every day was different); Diehl, 105:9-20 (every day brought new challenges), and that they could not estimate the amount of time they spent

20 performing various tasks listed in the Job Description. (Lugo, 38:18-21,40:13-19,41:4-21,47:6-12, 48:23-49:3, 55: 17-56:11, 60:1-5, 64:19-23, 67:17-68:14, 69:7-70:16, 71 :9-19; Valli, 35:25-36:10,

21 71:17-73:21, 74:15-80:14, 82:15-25, 184:8-13; Gomez 80:8-20; Moore, 31:18-32:9, 32:21-33:1,

34:20-24,41:22-42:1,48:2-6,52:11-16, 54:21-55:6, 55:25-56:5, 62:19-63:2, 68:5-9, 72:15-25, 73:8-
22 12,74:23-75:3,75:24-76:3,76:4-20, 100:10-18, 106:21-107:12, 131:24-132:3; Penunuri, 46:8-20,

23 48:9-15, 55:21-56:18, 60:10-13, 60:14-61:6, 62:3-18, 65:14-23, 66:2-15, 68:8-70:3, 70:23-71:3, 71:4-21; Armstrong, 54:18-22; Sarefield, 23:22-24:4, 28:20-29:1, 30:8-15, 35:13-18, 37:25-38:11,

24 40:19-25, 42:16-22, 44:12-45:1, 48:6-11, 50:8-14, 52:8-14, 53:14-20, 53:21-54:12, 54:19-55:3, 55:19-57:23; Whitton, 29:18-30:2, 33:2-10, 39:18-23, 42:6-9, 47:6-9, 48:8-14, 50:19-23, 54:19-23,

25 59:4-7,64:1-9,64:20-65:6,65:7-15,88:23-25; Hall, 41:1-4,52:19-53:3,61:7-24,63:22-25; Navarro,

37:16-19,53:5-19,88:15-21,124:17-24; Hoyt, 60:19-62:2, 62:11-16, 64:23-65:3, 65:4-66:10, 84:1426 85:8,113:2-8,140:16-22,143:11-15; Doubleday, 64:15-22,130:6-22,134:12-135:5,135:16-136:5;

27 Hebert, 148:1-15, 149:5-11, 151:12-152:3, 157:8-158:4, 158:9-160:17; Hayes, 19:18-21; Corona, 51:9-20; Gonzalez, 30:20-31:9, Walton, 57:9-13; Deubert: 78:2-12, 80:10-22, 81:12-20; Gore, 35:4-

28 8.)

LITTLER MENDELSON
Pf\O~ESSION"L CORPOft"TIO~
650 Cailfornul Slrllel
20tt\FloOf San FrlnCISCO, CA
941082693
4154331940

DEFT'S MOTION TO DECERTIFY THE CLASS; MEMORANDUM IN SUPPORT THEREOF

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The differences in CM approaches to specific other DT tools is further illustrated. here. 14
2

3

4

, 76:25-77:24;

123:20-22, 124:6-21;

Corona, 135:11-136:1; Faria, 62:7-63:6; Gonzalez,

5

40:2-11; Kauhn, 117:3-118:21; Maldonado, 80:2387:8; Hodge, 14:4-16; Martinez, 79:17-80:1; Pineda,

6

112:14-114:17; Chapman, 129:4-131:16; Diehl, 168:19-170:1; Durston, 80:10-25; Fierro, 150:12-13,

7

171 :23-172:12; Gore, 43:16-44:9, 46:6-48:9; Hamman, 95:14-25; Hayes, 84:13-85:13; Holland,

8

255:5-256:16; Moore, 63:22-64:15; Musk, 55:1756:6,66:17-67:2; Schneider, 225:7-228:25; Trinidad,

9

55:23-56:9; Valli, 154:6-18.

10

100:13-18.

11 Cruz, 332:16-333:21; :sanmelo,

12

67:22-23.

13

14 CMs see

CM retains

to make

15 merchandising placement decisions.

16

17

18

19

126:8; Dougherty, 125:7-15, 126:1-20, 138:13139:25, 171 :2-172:12; Faria, 137:25-140:12; 142:4143:14; Huntsman, 103:1-107:25, 116:9-117:2, 114:5-115:2; Patrick, 185:22-190:19; Maldonado, 26:9-27:16,29:6-21,37:22-38:22; Moreno, 127:15129:15.
125:25-126:8; Moore, 5 109:6-16; Trinidad, 107:15-108:2.

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LITTLER MENDELSON PROFESSIOIiAl CORPORATIOII
650 Callf~rnla Slrt;lQI 2011'1 Floor
San Francisco, CA. 941082693 4154331940

14 A "Playbook" is a binder of various management reports and memoranda sent to the CMs periodically by DT. (Hernandez, 82:14-83:3.) The "Seasonal Planner" is one document in the Playbook, which contains information about seasonal merchandise and displays. Other documents in the Playbook include company and store-specific sales analysis reports. (Hernandez, 166:20168: 19.) A "store walk" is when a Store Manager walks every aisle of his or her store to ascertain the store's condition, and to determine what tasks need to be performed, and to verity that past assigned tasks have been completed. (Hayes, 81:22-82:10.)

DEFT'S MOTION TO DECERTIFY THE CLASS; MEMORANDUM IN SUPPORT THEREOF

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PlloF£5SIONAl CORPOMAliOM
650 California SitU! 20thFIOOf
$6" FrIllO(l11CQ, CA 941082693 4154331940

CM Approach To Various Tools throughout the day.
The number of store walks depends upon the conditions of CMs' store. CMs conduct store walks 2-4 times per day.
CMs conduct store walks once a day.
CM did not walk the store. CM does not know DT's policy concerning store walks or whether he complied with such policy.

Evidence
34:1-15; Durston, 69:6-15; Mayhew, 16:4-16; Moore, 106:21-107:16; Montes, 78:2-6, 162:14-20; Penunuri, 111:5-17.
Moore, 106:21-107:16; Banks, 89:20-91:16; Cross, 137:21-138:14.
Black, 55:9-56:5; Buitron, 51:6-13; Corona, 141:6-8; Faria, 109:1-9; Hayes, 80:9-81:10; Hodge, 116:5-19; Lugo, 126:20-127:22; Montes, 78:2-18; Martinez, 162:21-25; Patrick, 91:1-92:16; Reyes, 88:23-90:3; Sarefield, 61:6-24; Toto, 30:9-18, 42:18-43:7.
Armstrong, 127:7-17; Avila, 100:2-7; Fierro, 168:214; Hamman, 92:24-93:11, 170:14-19; Kauhn, 81 :2382:8; Valli, 152:18-153:3; Whitton, 87:4-21.
Gore, 99:15-19.
Ayala, 73:24-74:23.

The Court should decertify the Class based upon the CMs divergent use of the purportedly "common" tools. 15

h. CMs Had Varying Approaches To Ordering And Displaying
Merchandise In Their Stores.

CM testimony also establishes material differences among CMs in ordering and displaying products. At each DT store, CMs were expected to delegate the placement of merchandise according to "flows," which means that complementary products are placed on shelves near one another in various departments. (Hensley, 97:3-16; Dunaway, 87:14-88:10.) A percentage of the products sold at every DT Store are set up for automatic stock replenishment ("ASR"). However, the ASR percentages changed from store to store and over time. (See e.g., Toto, 56: 17-24 (80% of the products at Store 1254 were on ASR); Armstrong, 15:19-20 (65-70% at Store Nos. 1216 & 1266); Dougherty, 114:4-25 (50% in 1233 & 1283); Martinez, 114:15-117:3 (changed over time);

15 CMs also testified that the tools and procedures they used changed over the course of the Class Period. (See, e.g., Martinez, 114:15-117:3 (ASR allocation also changed over time at the individual
store level); Hebert, 132:11-21 (same); Vandall Dec., ,-rx, Ex. X (Pearson Dec., ~7) (the scheduling
program, COMPASS, was introduced after the start of the class period); see also Avila, 103:1-24 (describing differences in the time spent scheduling using both COMPASS and its predecessor during the class period),) This lack of uniformity within the purportedly "common" tools themselves also supports decertification of the class.

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1 Hebert, 132:11-21 (changed over time); see also Vandall Dec., ~, Ex. Y (Jacobson-Allen Dec., Ex.
2 A); RJN, Ex. B.)
3 Apart from ASRs and goods delivered directly from outside vendors, CMs ordered
4 merchandise through the DT order book. According to Buitron, "everybody orders differently."
5 (Buitron, 144:20-25.) For example, Schneider ordered based on the seasonal buying preferences of
6 his customer base (e.g., more black balloons for Halloween, potting soil in the Spring, and goggles
7 during the Summer months). (Schneider, 74:24-76:13.) Hodge, however, did not change his
8 ordering based upon customer preferences. (Hodge, 36:24-37:2, 38:2-6, 102:22-103:1.) SM Corona
9 was "aggressive" with ordering and made sure she ordered daily so that she could keep enough
10 product on hand to sell. (Corona, 117:24-120:7, 125:7-19, 130:22-131:8, 122:13-124:19; see also
11 Holland, 338:16-21 (has tried to do aggressive ordering for the purpose of setting up in store
12 promotions); compare Hawley, 102:3-24 (testifying that he was a "smart order person" rather than
13 an aggressive orderer in that he "order[ed] what [he] need[ed] versus ... people that just order the
14 " most they can get of everything").) Some CMs ordered at varied intervals throughout the week.
15 (See e.g., Corona, 117:24-118:4 (daily); Banks, 139:2-5 (daily); Avila, 95:19-21 (twice a week);
16 Reyes, 78:13-22 (sometimes twice, sometimes four times per week), Hodge, 100:21-101:4 (five
17 times per week).) The CMs also reported spending varied amounts of time on ordering in a typical
18 work week. (Buitron, 149:16-23 (1 hour per day); Corona, 125:7-19 (30 minutes per day);
19 Doubleday, 114:24-115:8 (112 a day, once a week); Fierro, 177:3-9 (3 hours a week in San Jose and
20 90 minutes per week in Campbell).)
21 Similarly, photographs taken in February 2009 show the differences in seasonal displays
22 among seven stores in the Bay Area, which demonstrates the variances in decision-making between
23 stores. (Declaration of Pam Wolpa, ~~3-9, Exs. A-G.) There is no evidence to suggest a common
24 ordering experience among CMs.
25 c. eMs Had Varying Experiences With Human Resources Functions.
26 While CMs had access to an online corporate HR system called "Lawson" or "HR Self-
27 Serve", they were expected to and did make independent hiring and firing decisions. During their
28

LITTLER MENDELSON
PROFESSIONAL CORPORATION
650 California SHee1 201llFIooi
San FrancISCo, CA 94108.2693 4154331940

DEFT'S MOTION TO DECERTIFY THE CLASS; MEMORANDUM IN SUPPORT THEREOF

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LITTLER MENDELSON PROFESSIOlUL COflPORATIOlt
650 Calilornli!l Strut 20lhFIoor
Sun FrancISco, GA 941082693 4154331940

depositions, CMs provided divergent testimony on these hiring and firing experiences. Black testified that he hired about 100 employees on his own during the Class Period. (Black, 39:22-40:4.) Chin testified that she received direction from her DM to "hire, hire, hire" so she hired 30 hourly associates in a two to three day period. (Chin, 70:2-16.) Moore testified that he interviewed job applicants but that some of his DMs wanted to meet the applicants before he could hire them while other DMs just okayed his hiring decisions. (Moore, 45:16-46:23.) Sanders testified that he had the authority to recommend that his employees be fired and that his firing recommendations were followed. (Sanders, 57:2-58:2, 89:6-11.) Trinidad, however, testified that his DM fired the associates in his store. (Trinidad, 76:8-14.) Similarly, Buitron and Chapman made hiring recommendations for AMs (Buitron, 158:11-159:19; Chapman, 76:2-77:6) while Durston and Doubleday never made such recommendations. (Durston, 27:16-18; Doubleday, 57:18-24.)
CMs also provided wide-ranging testimony with respect to the amount of time they spent on HR tasks. For example, Faria estimated that she spent anywhere between 40-70% of her time recruiting, interviewing, hiring, and training associates. (Faria, 50:6-51:14.) Gore, however, did no hiring or interviewing. (Gore, 69:25-70:17.) And, Moore testified that the amount of time he spent on hiring changed from week to week based on the hiring needs of the store, the time of year, and store sales. (Moore, 48:2-13.)
Courts routinely decline to certify misclassification cases where, as here, differences in duties between class members reveals a predominance of individual issues. See, e.g. Pablo v. Servicemaster Global Holdings, Inc., 2009 WL 2524478, at *6 (N.D. Cal. Aug 17, 2009). Because there are material and measurable differences in CM job duties, the class should be decertified.
C. Because No CM Or Group Of CMs Can Provide Accurate Testimony On Behalf
Of The Entire Class, A Class Action Is Not The Superior Method Of Determining These Claims. 1. It Is Not Appropriate To Try An Exemption Case Containing Numerous
Factual Issues Using Representative Testimony.
The Plaintiffs here cannot prove that a class action is the superior method of prosecuting their claims. See Marlo v. UPS, Inc., 251 F.R.D. 476,487 (C.D. Cal. 2008) (class should be decertified if

DEFT'S MOTION TO DECERTIFY THE CLASS; MEMORANDUM IN SUPPORT THEREOF

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LITTLER MENDELSON PRoFEsSIOM,I,L CO!\I'OUTION
650 CallfOlnl1 SlIeet 20lhFIoor
San Fflll'ltlstO, CA 94101j 269~ 415,4331940

the class counsel does not adequately explain how the case will be tried); see Fed.R.Civ.P., R.23(b)(3)(D) (a class action is not superior where there are likely to be difficulties in trial management). "The greater the number of individual issues, the less likely that superiority can be established." See Spagnola v. Chubb Corp., 2010 U.S. Dist. LEXIS 1115 at *68 (S.D.N.Y. Jan. 7, 2010). Further, "representative testimony is typically only allowed in the unpaid overtime context to establish the number of hours employees worked and the amount they were paid, not whether a class of employees was exempt from the overtime laws' coverage". Wells Fargo District Court, 2010 U.S. LEXIS 2132 at *24.
In Vinole, supra, the plaintiffs argued, as do Plaintiffs here, that the burdens necessitated by individualized inquiries regarding job duties and the use of common tools could be mitigated through "innovative procedural tools," such as questionnaires, statistical or sampling evidence. 571 F. 3d at 947. However, both the district court and the Ninth Circuit found that "[t]hese arguments are not persuasive in light of our determination that Plaintiffs' claims require a fact-intensive, individual analysis of each employee's exempt status." Id. The Ninth Circuit concluded that denial of class certification was appropriate to "ameliorate the need to hold several hundred mini-trials with respect to each [employee's] actual work performance". Id. at 948; see Jimenez v. Domino's Pizza, Inc., 238 F.R.D. 241, 252 (2006) (refusing to certify class because "the predominating issue in this case is the actual mix of duties worked which entails a need to conduct an individual inquiry for each class member':); see also Sav-on Drug Stores, Inc. v. Superior Ct., 34 Cal. 4th 319, 326, 17 Cal. Rptr. 3d 906, 96 P.3d 194 (2004) (finding class treatment is proper only when class action is "advantageous to the judicial process and to the litigants"). Given that (1) the California executive exemption requires the trier of fact to determine whether each CM actually spent more than 50% of his or her time on exempt tasks during each work week in the Class Period,16 and (2) there are

16 To fall under the executive exemption of the California Labor Code, the employee at issue must spend more than 50% of his or her work time on exempt duties. Wage Order 7-2001(1)(A)(1) and (2)(K); RJN, Ex. A. Such duties include various tasks that are listed in the Job Description such as interviewing, training, scheduling, directing the work of subordinates, maintaining proper sales records, evaluating performance and efficiency, planning how work is to be performed, and other similar activities. 29 C.F.R. § 541.102; see Wage Order 7-2001(1)(A)(1)(e) (activities constituting exempt work shall be construed in accordance with federal regulations).

DEFT'S MOTION TO DECERTIFY THE CLASS; MEMORANDUM IN SUPPORT THEREOF

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LITTLER MENDELSON
PROritS$IONAL COR~O~"TION
650 Cali/ornll SHeet 20th FloQr
San FIiHICISCO, CA 941082693 4154331940

unique circumstances present for a substantial number of CMs concerning the time they spent (or could recall spending) on managerial tasks, this case will result in potentially hundreds of individual trials. A class action simply is not the superior method of prosecuting these claims given Defendant's assertion that the executive exemption defense must be applied to each Class Member.
Indeed, a proper exemption analysis evaluates how much of each individual's time is spent in exempt duties requiring the exercise of independent discretion and judgment, and whether such time was consistent with the employer's realistic expectations. Ramirez v. Yosemite Water Co., 20 Cal. 4th 785, 802-803 (1999), 85 Cal. Rptr. 2d 844, 978 P.2d 2. Here, the evidence shows that CMs are expected to and do perform exempt duties. Further, CMs testified about differences in the duties they performed during the Class Period and how much time they spent performing such duties. Thus, any trial necessarily will require DT to "pick the class apart, plaintiff by plaintiff, going into the day-to-day job duties of each of the plaintiffs to prove that these [CMs] are properly classified as exempt." See Johnson v. Big Lots, 561 F.Supp.2d 567 (E.D. LA 2008) (citing Trinh v. JP Morgan Chase & Co., No. 07-CV-1666 W(WMC), 2008 WL 1860161 (2008».
The varied experiences of the CMs precludes the use of representative testimony for purposes of establishing liability because the testimony of a purportedly "representative" number of CMs cannot be extrapolated to the remainder of the class. See, Whiteway 2009 Order, supra (decertifying class where the plaintiff could not show how testimony from limited number of class members could be extrapolated to approximately 500 class members); Wells Fargo District Court, 2010 U.S. Dist. LEXIS at *24-25 (because of the requirement of individualized fact-finding, "representative" testimony of a statistical sample was not appropriate); see also Johnson, 561 F.Supp.2d at 579 (finding, in federal executive exemption case, after trial began, "the 'representative' testimony [of the opt-in plaintiffs] is not representative of plaintiffs' experiences" because of the "variations in employment responsibilities"). DT's expert Crandall sets forth how the variation in time spent on exempt and non-exempt activities could result in store managers falling on either side of the 50% "primary duties" test. (Crandall Dec., pp. 53-54; Crandall Rebuttal, ~12.) If the class is not decertified, it is likely that the trial will splinter into individualized issues. The Court

DEFT'S MOTION TO DECERTIFY THE CLASS; MEMORANDUM IN SUPPORT THEREOF

23.

CASE NOS. C 07 2050 SC and C 07 04012 SC

Case3:07-cv-02050-SC Document188 Filed06/18/10 Page28 of 34

1
2 3 4 5 6 7 8 9 10 11 12 13 14
15 16
17 18 19
20
21 22
23 24 25
26
27
28
uTTlER MENDELSON
PROFESSIONAL CORPORATION 650 California Street
20rhFIoOf San Frl!lnel$co, CA
94108.2693 4154331940

should decertify the class now to bypass this inevitable outcome.
2. Plaintiffs' Scattershot Proposals For A Trial Plan Do Not Pass Legal Muster.

Plaintiffs have failed to present any trial plan that would be fair or workable here. In their

Motion for Class Certification, Plaintiffs proposed that the Court could determine the exempt status

of each ofthe duties of the job description (Class Cert. Motion, p. 24), a proposal that is contradicted

by their responses to RFAs that the 17 duties listed in the Job Description do not describe what CMs

actually do (Vandall Dec., ~, Ex. F), and their qualification of their answers with a lengthy list of

tasks encompassed in each job duty before responding whether the duty was exempt or non-exempt.

(Id.) (See pp. 8-9, supra.) Plaintiffs' expert stated that although each of the 17 duties are

"managerial" (Lewin, 57:3-14), he does not think that the Job Description alone is sufficient to

describe what CMs do. (Lewin, 57:15-25.)

Since the Class Cert. Order, Plaintiffs have seemingly taken a new position: that this case

must be decided on representational testimony. (Vandall Dec., ,-r~, W Ex. V (Motion for Case

Management Order, 3:14-17) "the parties and this Court must determine, before anything else,

(1) how many class members will ultimately testify and (2) who those exemplar trial plaintiffs will

be").) However, Plaintiffs themselves have consistently stated that neither the experiences of named

Plaintiffs nor other CMs with regard to their perforniance of certain job duties can be extrapolated to

the class as a whole. In a Joint Letter to the Magistrate regarding Plaintiffs' responses to RFAs

asking Plaintiffs to admit that the testimony of a CM on a particular topic was representative of the

class as a whole, Class Counsel argued:

•

"It is clear that Plaintiffs are asked to not only admit that they shared some 48

particular job responsibilities (i. e., that they are responsible for disciplining store

employees), but that they agree with each deponent's characterization of those

responsibilities, ..." (Vandall Dec., ,-rM, Ex. J, p. 8);

•

"Even if Plaintiffs could reasonably be expected to comment on whether a given

Store Manager's testimony is "representative" of the class (which they cannot do at

this time), ..." (Jd.)

At the telephonic hearing regarding the propriety of the responses, Class Counsel argued as follows:

DEFT'S MOTION TO DECERTIFY THE CLASS;

24.

MEMORANDUM IN SUPPORT THEREOF

CASE NOS. C 07 2050 SC and C 07 04012 SC

Case3:07-cv-02050-SC Document188 Filed06/18/10 Page29 of 34

1

. . . a lot of these questions refer to deposition testimony that

characterizes the manner in which each duty is completed in a very

2

specific and personal way. And we intend, in our amended responses

to give more general answers about whether or not that duty was

3

completed in an exempt or not exempt fashion, I guess, for each

particular person, and not saying that the specific ... manner in which

4

that particular deponent completed a duty is, in fact, representative of

the whole. (Vandall Dec.,~, Ex. K, 7:4-12.)

5

6 Given these admissions, Plaintiffs' suggestions to this Court that the parties select exemplar

7 plaintiffs for a class trial is perplexing at best.

8

In another variation on the trial plan, Plaintiffs' expert testified that it would be possible and

9 appropriate to survey all eMs after a determination of whether various tasks are exempt or non-

10 exempt, to determine how much time they spent in each job duty. (Lewin, 96:1-97:22; Vandall

11 Dec., ~GG, Ex. JJ (Lewin Rebuttal Report, ~17).) However, a trial plan that requires each class

12 member to individually establish liability is not a manageable plan. See, Wells Fargo Dist. Ct., 2010

13 U.S. Dist. LEXIS 3132, at *21 (inquiries into how much time the class members spent injob duties

14 would "inevitably consume the majority of a trial"); Marlo, supra, 251 F.R.D. at 487 (rejecting

15 proposed plan to establish non-exempt status using an unscientific telephone survey, and finding

16 unpersuasive Plaintiffs' suggestion that the defendant could "knock out" exempt class members

17 during the damages phase); Rodriguez v. Gates, 2002 U.S. Dist. LEXIS 10654, at *43-44 (C.D. Cal.

18 2002) (a class action is not superior where the court would have to conduct a trial or summary

19 judgment type proceeding for every class member). Further, Plaintiffs have failed to describe how a

20 representational trial will look, or to identify how many Class Members are "representative". Nor

21 has their expert opined on such topics. (Lewin, 98:13-99:5.) Finally, a survey asking CMs to

22 allocate their time between various job duties will not provide accurate results; the CMs have

23 consistently testified that they cannot allocate their time and that "every day is different". (See e.g.,

24 Valli, 35:25-36: 10; see also fn. 12, infra.)

25

Leaving aside Plaintiffs' own admissions, courts disfavor representational testimony in the

26 class certification context. In Wells Fargo District Court, 2010 U.S. Dist. LEXIS 3132, at *24, the

27 court acknowledged that it had "been unable to locate any case in which a court permitted a plaintiff

28 to establish the non-exempt status of class members, especially with respect to the outside sales

lITHER MENDELSON
PROFES$IOH ...t COllrortATIOM
650 Callrornla Sirell' 20t1'lFlo(JI
San FrllMisco, CA 94t082693 415.4331940

DEFT'S MOTION TO DECERTIFY THE CLASS; MEMORANDUM IN SUPPORT THEREOF

25.

CASE NOS. C 072050 SC and C 07 04012 SC

Case3:07-cv-02050-SC Document188 Filed06/18/10 Page30 of 34

1
2
3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21
22
23 24 25 26 27 28
LITTLER MENDELSON PlHlfES$IONAl CORPOFlATION
650 Callfolnla Sireel 20th Floor
San FrancIsco, CA 941082693 415433,1940

exemption, through statistical evidence or representative testimony." As was the case in Johnson,

supra, a likely result here is that the differences in testimony at trial will result in an unmanageable

trial and/or revisiting class certification issues at trial. (Crandall Dec., pp. 8-9, 53-53.) Given the

disparity in duties between the CMs here and the need to address how each individual member of the

class spends the majority of his work day, the Court will be required to examine the unique

circumstances of individual CMs and to conduct a "mini-trial" for each CM to determine whether he

or she primarily performed exempt work. For the reasons discussed infra, conducting hundreds of

mini-trials is anathema to the efficiencies promised by Rule 23.

Consistent with these arguments, a comparison of the individual experiences of CM Buitron,

whose deposition was taken after Class Certification in this matter, and named Plaintiff Robert

Runnings ("Runnings") demonstrates the fact-intensive nature of the exemption analysis in this case,

and the reality that no one CM can testify on behalf of all CMs.

Relevant Topic for Exemption Analysis

Buitron Testimony

Runnings Testimony

DM Involvement in Store Decisions

DMs did not provide Buitron with much direction on day-to-day operational decisions. Buitron, 88: 1389:13.

DMs "closely" supervised Runnings and were often physically present in the store providing direct instruction. Vandall Dec., 'lfDD, Ex. GG (Runnings' Opp. Brief) at pp. 12:9-12; id., Ex. HH (Runnings Dec.), ~12.

Overall Authority at the Stores Managed

Buitron made all the decisions about how to run her stores using her own discretion and judgment and she maintained control over their daily operations. Buitron, 91 :24-92: 13, 157:2-158:7.

Runnings was "rarely, if ever, permitted to make any decision of real or substantial significance to the operation of his store." and Vandall Dec., 'lfDD, Ex. GG (Runnings' Opp. Brief) at pp. 12:9-12.

Use of Seasonal Planners/ Merchandising Seasonal Products, Endcaps, and Display Tables

Buitron views the sales planners as a set of suggestions and the "vast majority" of aisles and end caps at her stores were discretionary by department allowing Buitron to select specific items and determine their placement. Buitron, 113:2-21, 116:13-118:18, 119:21-120:14.

Runnings used the planners as a guideline for building displays at his store and he always followed the guidelines. Runnings, 108:21-109:7. Runnings developed 75% of the end caps himself without any corporate suggestions at Store 2939.

DEFT'S MOTION TO DECERTIFY THE CLASS; MEMORANDUM IN SUPPORT THEREOF

26.

CASE NOS. C 07 2050 SC and C 07 04012 SC

Case3:07-cv-02050-SC Document188 Filed06/18/10 Page31 of 34

2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
uHLER MENDELSON PROFESSIONAL CORPORATiON
650 California Streel 20th Floor
San FranO:lsco. CA 941082693 4Hi4331940

Relevant Topic for Exemption Analysis

Buitron Testimony

Runnings Testimony

Runnings, 105:13-106:6.

Ordering Merchandise

Of the products that were not automatically replenished or delivered by outside vendors, Buitron chose what to buy based upon her review of the order book and her own assessment of what sold at her stores. Buitron, 141:10-143:23. If an item sold well, she ordered enough of it to make an impactful presentation. Id, 143:11-17.

Runnings did not feel that he could exert control over the type and quantity of products that were sold in his store. Vandall Dec., ~D, Ex. GG (Runnings' Opp. Brief) at pp. 12:20-13:1; see also, Runnings, 113:3-23; Vandall Dec., ~D, Ex. HH (Runnings Dec.), ~12.

Hiring Authority

"I make the decision on who to hire and who not. You know, as a you know, once you do their interview if they do well, then you're going to pretty much hire them or not hire them." Buitron, 163:3-13. All of her recommendations for AM hires were followed. Id, 159:22-19.

Runnings was not authorized to choose his own management team or hire as many hourly associates as he wanted. Vandall Dec., ~DD, Ex. GG (Runnings' Opp. Brief) at p. 10:7-9; id., Ex. HH (Runnings Dec.), ~12.

Firing Authority / Employee Discipline

Buitron was authorized to and in fact did suspend associates that she discovered were stealing without getting approval from anyone else at DT. Buitron, 61 :17-63:18. Similarly, she has fired associates herself (with the approval of Asset Protection) and the one time she recommended to her DM that an AM be terminated, her recommendation was followed. Id, 167-169:1.

Runnings testified that he had no firing authority. Runnings, 163:16-17.

Participation In or Delegation of Stocking, Moving Items From the Stock Room to the Sales Floor, and Cashiering

Buitron was not expected to and she did not physIcally stock shelves, ring a cash register or move freight from the back room to the store shelves; rather, she delegate such tasks to her subordinates. Buitron, 127:5-128:16, 134:4-136:16 178:1-179:23,205:7-23. If Buitron found herself short-staffed, she would call another associate to work rather than perform any physical labor herself. Id, 135:9-25.

Runnings "spends over seventyfive (75%) of his work time performing manual labor, such as 'throwing freight', stocking product, and cashiering." Vandall Dec., ~D, Ex. GG (Runnings' Opp. Brief) at p. 8:12-14; see also Runnings, 47:12-17,280:25-281 :19; Vandall Dec., ~D, Ex. HH (Runnings Dec.), ~~4, 16.

Use of Payroll Hours Buitron received additional payroll hours anytime she asked for them.

Runnings performs nonmanagerial duties because he

DEFT'S MOTION TO DECERTIFY TIlE CLASS; MEMORANDUM IN SUPPORT THEREOF

27.

CASE NOS. C 07 2050 SC and C 07 04012 SC

Case3:07-cv-02050-SC Document188 Filed06/18/10 Page32 of 34

1 Relevant Topic for

Buitron Testimony

Exemption Analysis
2
Buitron, 233 :2-234: 1.

3

4

5

6 Certification Process Buitron regularly certified "yes,"

7

indicating compliance with DT's policy that she spent the majority of

8

her work week in managerial duties.

Buitron, 183:4-186:8.

9

10

Runnings Testimony
does not have payroll hours them to hourly workers. Vandall Dec., ~D, Ex. GG (Runnings Opp. Brief) at p. 10:4-7; id. Ex. HH (Runnings Dec.), ~~3, 12 and 14(e).
Runnings regularly certified that he was non-compliant on his weekly payroll certification forms. Vandall Dec., ~D, Ex. GG (Runnings' Opp. Brief) at p. 10:12-13; id., Ex. HH (Runnings Dec.), ~~7 and 10.

11

Plainly, the experience of "representative" Runnings cannot be r~lied upon to represent the

12 experience of Buitron, nor can Buitron represent Runnings' experience. To have a fair trial of any

13 individual CM's claims, the Court will be forced to inquire how each Class Member performed his

14 or her job, the direction they experienced from district management, and the level of discretion they

15 felt they were empowered to and did exercise. Thus, a trial in this case would unavoidably require

16 the Court to conduct "several hundred mini-trials with respect to each [CM's] actual work

17 performance" to determine their exempt status. Vinole, 571 F.3d at 947.

18
19
20
21
22
23
24
25
26
27
28
LITTLER MENDElSON PROf'ESSIOH"t COIIPORAllOM
650 California Slreel 2011\ Floor
San FranCISCO, CA 941082693 4154331940

3. Credibility Issues Require An Individualized Inquiry.
At least 26% of the CMs deposed (e.g., 15 of 58 CMs) either admitted dishonesty or made
insupportable statements on the record; hence, the trier of fact will need to make individual inquiries
into the credibility of each CM on the subjects of the time they spent on exempt versus non-exempt
tasks as well as their alleged damages,17 if any, no matter how this case is tried:
• CMs testified that the declarations Plaintiffs submitted in support of class certification were "misleading" in several material respects. (Toto, 241:1-245:12 (his declaration was "very misleading" because it does not accurately reflect his regular work schedule, its statements concerning meal periods were not true and it "does not reflect [his] job duties at all" with respect to unloading freight tasks); Dougherty, 259:24-262:18; 266:18-

17 Class Counsel's trial plan involves sending a survey to CMs asking them, while they remain covered by the attorney-client privilege, how much time they spent performing the tasks listed in the position description. Obviously, if a CM is willing to lie under oath, they may also lie when asked to provide survey information in support of a finding of liability.

DEFT'S MOTION TO DECERTIFY THE CLASS; MEMORANDUM IN SUPPORT THEREOF

28.

CASE NOS. C 07 2050 SC and C 07 04012 SC

Case3:07-cv-02050-SC Document188 Filed06/18/10 Page33 of 34

1 2 3 4 5
6 7
8
9
10 11 12 13 14 15 16 17 18
19 20 21 22 23 24 25 26 27 28
LITTLER MENDELSON
PROF[stIONAl CORPORATION
650 California Street 20lhFIoor
Sal" Frlllnf.lIS(lO, CA 94108.2693 4154331940

271 :25, 272:2-275:18 (testifying that ~~ 8, 13, 14 of her declaration were misleading); Faria, 122:9-16, 123:18-124:16, 127:16-128:1425, (her deposition testimony and her declaration were contradictory because she "did not even understand what [the declaration said]" and that she just "looked at it really quickly" and "signed it and sent it back"));
• One former CM now contends that she was harassed and intimidated by Class Counsel who refused to listen to her attempts to explain her responses to various "interview" questions and insisted that she respond only by saying "yes" or "no". (Vandall Dec., ~Z, Ex. CC (Declaration of Bertha Castro, ~~ 3, 4).) Naturally, if this is how the Plaintiffs' declarations were compiled, they all are subject to collateral attack;
• Some CMs lied under oath (see e.g., Hoyt, 67:3-19, 68:24-69:17 (he spent time monitoring shrink by watching video cameras at a store with no video cameras to watch)) while others provided demonstrably false testimony. (See e.g., Hodge, 144:4-145:12, 147:13-148:6, 148:16-20 (spending five hours and ten hours supervising constitutes the same amount of time supervising); Gonzalez, 17:7-22 (spending eight hours with one group of employees is no different than spending two hours with another group of employees)); and
• Some deponents admitted lying during the certification process. (See e.g., Armstrong, 26:2-27:6; Ayala, 133:21-135:20; Dougherty, 68:3-70:4; Fierro, 219:6-14; Lugo, 25:6-25; Martinez, 51 :25-52:20; Mayhew, 127:11-129:16; Penunuri, 38:12-15, Walton, 41 :543:10,48:16-20; and Whitton, 23:25-26:6.)
Plaintiffs' proposed method of trying these claims, through representational testimony, is not
a fair process for establishing liability regarding 718 Class Members in light of the numerous factual
issues. As such, a class action is not the superior method oftrying this case.
D. Class Certification Is Not Appropriate For Meal And Rest Period Claims.
Plaintiffs' claims for meal and rest period violations arise from their misclassification claims,
and for the reasons set forth above, are not appropriate for class treatment. In addition, the status of
the law of meal and rest periods is uncertain regarding the issue of whether meal and rest periods
must be "provided" or whether employers must "ensure" that they are taken. See Brinker v. Superior
IIII
IIII
IIII
IIII

DEFT'S MOTION TO DECERTIFY THE CLASS; MEMORANDUM IN SUPPORT THEREOF

29.

CASE NOS. C 07 2050 SC and C 07 04012 SC

Case3:07-cv-02050-SC Document188 Filed06/18/10 Page34 of 34

1 Court, 165 Cal.App.4th 25 (2008) (depub., rev. grant. Oct. 22, 2008) and Brinkley v. Public Storage,
2
Inc., 167 Cal.App.4th 1278 (2008) (depub. rev. grant. Jan. 14,2009).18 3
Individualized proof is required to determine whether individual CMs missed a meal break
4 and, if so, whether the CM was forced to work through the break or simply chose to skip it. See
5 Brown, 249 F.RD. at 584-585 (in light of the "provide" standard applicable to meal periods,
6 individualized factual inquiries predominate over the few common legal and factual issues); Salazar,
7 251 F.RD. at 534 (the "provide" standard applicable to meal period claims forecloses class-wide
8 adjudication); Blackwell v. SkyWest Airlines, Inc., 245 F.R.D. 453, 467 (S.D. Cal. 2007) ("to
9 determine which employees were not provided with a timely 30-minute meal period requires a
10 highly individualized factual inquiry."). Even if DT was required to ensure that CMs took meal and
11 rest periods, there are numerous factual differences here that would have to be explored regarding
12 CM practices regarding meal and rest periods.
13
IV. CONCLUSION 14
Based on the foregoing, the Court should grant this motion for class decertification, because
15 Plaintiffs cannot carry their burden of proving that they meet the requirements of Rule 23.
16 Dated: June 18,2010
17

18
19
20
21
22
23
24
25
26
27
28
LITTLER MENDELSON PAOFES$IO~"L CORPORAT!O"l
650 C~llforllla SHl!(I\ 201hFIoof
San FrancIsco, CA 941082693 4154331940

Firmwide:95906832.2061603.1004

lsi Maureen E. McClain MAUREEN E. McCLAIN LITTLER MENDELSON A Professional Corporation Attorneys for Defendant DOLLAR TREE STORES, INC.

18 In addition, numerous federal courts that have determined that liability under these statutes requires proof that the employee was forced to forego his or her meal period. See, e.g., White v. Starbucks, 497 F.Supp.2d 1080, 1089 (N.D. Cal. 2007); Brown v. Federal Express, 249 F.R.D. 580, 585 (C.D. Cal. 2008) (denying certification of meal and rest period claims and explaining that an "ensure" standard for meal breaks would "create perverse incentives, encouraging employees to violate company meal break policy in order to receive extra compensation"); Kenny v. Supercuts, Inc., 252 F.RD. 641 (N.D. Cal. 2008) (the Labor Code does "not require an employer to ensure that an employee take a meal break"); Perez v. Safety-Kleen Sys., Inc., 253 F.RD. 508 (N.D. Cal. 2008);
Salazar v. Avis Budget Group, Inc., 251 F.RD. 529, 533 (S.D. Cal. 2008) ("provide" means '''make
available' rather than 'ensure taken"').

DEFT'S MOTION TO DECERTIFY THE CLASS; MEMORANDUM IN SUPPORT THEREOF

30.

CASE NOS. C 07 2050 SC and C 07 04012 SC

 
 Case3:07-cv-02050-SC Document212 Filed07/02/10 Page1 of 32

SCOTT COLE & ASSOCIATES, APC
ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR
OAKLAND, CA 94612 TEL: (510) 891-9800

1 Scott Edward Cole, Esq. (S.B. #160744) Molly A. Kuehn, Esq. (S.B. #230763)
2 SCOTT COLE & ASSOCIATES, APC 1970 Broadway, Ninth Floor
3 Oakland, California 94612 Telephone: (510) 891-9800
4 Facsimile: (510) 891-7030 web: www.scalaw.com
5 email: scole@scalaw.com email: mkuehn@scalaw.com
6
Attorneys for Representative Plaintiffs 7 and the Plaintiff Class

8

9

UNITED STATES DISTRICT COURT

10

NORTHERN DISTRICT OF CALIFORNIA, SAN FRANCISCO DIVISION

11

12 MIGUEL A. CRUZ and JOHN D.

) Case No.: C-07-02050 SC

HANSEN, individually, and on behalf )

13 of all others similarly situated,

) CLASS ACTION

)

14

Plaintiffs,

) PLAINTIFFS’ OPPOSITION TO

) DEFENDANT'S MOTION TO DECERTIFY

15 vs.

) THE CLASS; MEMORANDUM OF POINTS

) AND AUTHORITIES

16 DOLLAR TREE STORES, INC.,

)

)

17

Defendants.

)

)

18

)

ROBERT RUNNINGS, individually, ) Case No.: C-07-4012 SC (Consolidated Action)

19 and on behalf of all others similarly )

situated,

) CLASS ACTION

20

)

Plaintiffs,

)

21

)

vs.

)

22

)

DOLLAR TREE STORES, INC.,

) Date: July 23, 2010

23

) Time: 10:00 a.m.

Defendants.

) Dept.: Crtrm. 1, 17th Floor

24

) Judge: Hon. Samuel Conti

25

26

27

28

Plaintiffs' Memo. of Points and Authorities in Opposition to Defendant's Mtn. to Decertify the Class

Case3:07-cv-02050-SC Document212 Filed07/02/10 Page2 of 32

SCOTT COLE & ASSOCIATES, APC
ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR
OAKLAND, CA 94612 TEL: (510) 891-9800

TABLE OF CONTENTS

Page

1

2 I. INTRODUCTION AND SUMMARY OF ARGUMENT ..................................................... 1

3 II. STATEMENT OF FACTS/PROCEDURAL HISTORY ....................................................... 3

4

A. UNIFORMITY IN THE SM POSITION IS EXPECTED ................................................. 3

5

B. DOLLAR TREE VERIFIED THAT ALL SMs DID THE SAME JOB ............................ 5

6

C. THERE IS NO NEED TO RE-EXAMINE CLASS CERTIFICATION............................ 6

7 II. ARGUMENT .......................................................................................................................... 8

8

A. STANDARD FOR CLASS CERTIFICATION ................................................................. 8

9

B. THE PREDOMINANCE TEST EXAMINES THE SIGNIFICANCE, NOT JUST

10

THE QUANTITY, OF COMMON AND INDIVIDUAL ISSUES................................. 12

11

1. All Class Claims Share the Same Questions of Law .................................................... 14

12

2. Common Questions of Fact Predominate ..................................................................... 14

13

3. How Much Time Managers Spend on Any Work Task Is Presently Irrelevant ........... 18

14

4. The Motion Fails to Observe Overwhelming Evidence of Commonality .................... 19

15 C. A CLASS ACTION IS THE SUPERIOR METHOD OF ADJUDICATING THESE

16

WAGE AND HOUR CLAIMS ........................................................................................ 21

17 D. CLASS CERTIFICATION PERMITS USE OF A STREAMLINED TRIAL PLAN ..... 22

18

1. Plaintiffs Have Repeatedly Proposed A Consistent Trial Plan..................................... 23

19

2. The Trial Plan Outlined in the Class Certification Motion (and Elsewhere) is

20

Workable....................................................................................................................... 24

21 III. CONCLUSION................................................................................................................. 27

22

23

24

25

26

27

28

-iPlaintiffs' Opposition to Defendant's Motion to Decertify Class Action; Memorandum of Points and Authorities

Case3:07-cv-02050-SC Document212 Filed07/02/10 Page3 of 32

SCOTT COLE & ASSOCIATES, APC
ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR
OAKLAND, CA 94612 TEL: (510) 891-9800

TABLE OF AUTHORITIES 1

2

Cases

B.W.I. Custom Kitchen v. Owens-Illinois, Inc.,

3

191 Cal.App.3d 1341 (1987) .................................................................................................... 24

4

Blackie v. Barrack, 524 F.2d 891 (9th Cir. 1975) .................................................................................................... 24

5 Brinker v. Superior Court, 165 Cal.App.4th 25 (2008) ....................................................................................................... 25
6 Brinkley v. Public Storage, Inc.,

7

84 Cal.Rptr.3d 873 (2008), review granted, 87 Cal.Rptr.3d 674 (Jan. 14, 2009) .................... 25 Bufil v. Dollar Financial Group, Inc.,

8

162 Cal.App.4th 1193 (2008) ............................................................................................. 13, 26

Butler v. Home Depot, Inc.,

9

1997 WL 605754 (ND Cal. Aug. 29, 1997) ............................................................................... 9

10

Chavez v. IBP, Inc., 2005 WL 6304840 (ED Wash. May 16, 2005) .......................................................................... 9

11 Cruz v. Dollar Tree Stores, Inc., 2009 WL 1458032 (ND Cal. May 26, 2009) ............................................................................ 12
12 Day v. NLO,

13 851 F.Supp. 869 (S.D. Ohio 1994) ........................................................................................... 26 Domingo v. New England Fish Co.,

14 727 F.2d 1429 (9th Cir. 1984) .................................................................................................. 24 Dukes v. Wal-Mart Stores, Inc.,
15 603 F.3d 571 (9th Cir. 2010) (on rehearing en banc) ................................................................ 8

16 Dukes v. Wal-Mart, Inc., 509 F.3d 1168 (9th Cir. 2007) .................................................................................................... 8

17 EEOC v. O & G Spring & Wire Forms Spec. Co.,

38 F.3d 872 (7th Cir. 1994) ...................................................................................................... 24 18 Eisen v. Carlisle & Jacquelin,

19 417 U.S. 156 (1974).................................................................................................................... 9 Employment Dev. Dept. v. Superior Court,
20 30 Cal.3d 256 (1981) ................................................................................................................ 24

Gen. Tel. Co. of the Southwest v. Falcon, 21 457 U.S. 147 (1982).................................................................................................................... 9

22 Gentry v. Superior Court, 42 Cal.4th 443 (2007) ......................................................................................................... 21, 22
23 Ghazaryan v. Diva Limousine, Ltd.,

24

169 Cal.App.4th 1524 (2008) ............................................................................................. 13, 21 Hanlon v. Chrysler Corp.,

25 150 F.3d 1011 (1998)................................................................................................................ 12
Harper v. 24 Hour Fitness, Inc., 26 167 Cal.App.4th 966 (2008) ..................................................................................................... 26

27

Hernandez v. United Auto Credit Corp., 2010 WL 1337702 (ND Cal. Apr. 2, 2010) .............................................................................. 11

28

-iiPlaintiffs' Opposition to Defendant's Motion to Decertify Class Action; Memorandum of Points and Authorities

Case3:07-cv-02050-SC Document212 Filed07/02/10 Page4 of 32

SCOTT COLE & ASSOCIATES, APC
ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR
OAKLAND, CA 94612 TEL: (510) 891-9800

Hilao v. Estate of Marcos,

1

103 F.3d 767 (9th Cir. 1996) .................................................................................................... 24

2 Howard v. Gap, Inc., 2009 WL 3571984 (ND Cal. 2009) .......................................................................................... 11

3 Hynix Semiconductor, Inc. v. Rambus, Inc.,

4

2008 Lexis 11765 (ND Cal. Feb. 2, 2008)................................................................................ 17 In re Joint E & S Dist. Asbestos Litig.,

5

129 Bankr 710 (E & SDNY 1991)............................................................................................ 22

In re Visa Check/MasterMoney Antitrust Litig.,

6

280 F.3d 124 (2d Cir. 2001)...................................................................................................... 27

7

In re Wells Fargo Home Mortg. Overtime Pay Litigation, 2010 WL 174329 (ND Cal. Jan. 13, 2010) ......................................................................... 10, 11

8 In re Wells Fargo Home Mortg. Overtime Pay Litigation,

571 F.3d 953 (9th Cir. 2009) ...................................................................................... 6, 9, 10, 26 9 Jaimez v. DAIOHS USA, Inc.,

10

181 Cal.App.4th 1286 (2010) ................................................................................................... 13 Jenkins v. Raymark Indus.,

11 782 F.2d 468 (5th Cir. 1986) ...................................................................................................... 8

Johnson v. Big Lots Stores, Inc., 12 561 F.Supp.2d 567 (ED La. 2008) .............................................................................................. 8

13 Jordan v. County of Los Angeles, 669 F.2d 1311 (9th Cir. 1982) .................................................................................................... 9

14 Marlo v. United Parcel Service, Inc.,

251 F.R.D. 476 (CD Cal. 2008) .................................................................................................. 8 15 Medrazo v. Honda of North Hollywood,

16 166 Cal.App.4th 89 (2008) ....................................................................................................... 12 Mendoza v. Home Depot, U.S.A. Inc.,

17 2010 WL 424679 (CD Cal. 2010)................................................................................. 11, 12, 19

Moore v. Hughes Helicopters, Inc., 18 708 F.2d 475 (9th Cir. 1983) ................................................................................................ 9, 21

19 Morgan v. Family Dollar, 551 F.3d 1233 (11th Cir. 2008) ................................................................................................ 11

20 Mullen v Treasure Chest Casino, LLC,

186 F.3d 620 (5th Cir. 1999) .................................................................................................... 12 21 O’Connor v. Boeing North American, Inc.,

22 97 F.R.D. 404 (CD Cal. 2000) .................................................................................................... 8 Pablo v. Servicemaster Global Holdings, Inc.,

23 2009 WL 2524478 (ND Cal. Aug. 17, 2009) ........................................................................... 11

24

Prince v. CLS Transportation, Inc., 118 Cal.App.4th 1320 (2004) ................................................................................................... 13

25 Ramirez v. Yosemite Water Co., Inc.,
20 Cal.4th 785 (1999) ............................................................................................................... 25 26 Reyes v. San Diego County Bd. of Supervisors,

27

196 Cal.App.3d 1263 (1987) ...................................................................................................... 8 Rose v. City of Hayward,

28 126 Cal.App.3d 926 (1981) ...................................................................................................... 13

-iiiPlaintiffs' Opposition to Defendant's Motion to Decertify Class Action; Memorandum of Points and Authorities

Case3:07-cv-02050-SC Document212 Filed07/02/10 Page5 of 32

SCOTT COLE & ASSOCIATES, APC
ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR
OAKLAND, CA 94612 TEL: (510) 891-9800

Sav-On Drug Stores, Inc. v. Superior Court,

1

34 Cal.4th 319 (2004) ........................................................................................................ passim

2 Staton v. Boeing Company, 327 F.3d 938 (9th Cir. 2003) ...................................................................................................... 9

3 Stewart v. General Motors Corp.,

4

542 F.2d 445 (7th Cir. 1976) .................................................................................................... 24 Sullivan v. Kelly Services, Inc.,

5

2010 WL 1729174 (ND Cal. Apr. 27, 2010) ............................................................................ 11

Vinole v. Countrywide Home Loans, Inc.,

6

571 F.3d 935 (9th Cir. 2009) ................................................................................................ 9, 10

7

Wang v. Chinese Daily News, Inc., 231 F.R.D. 602 (CD Cal. 2002) ............................................................................................ 7, 12

8 Weigele v. FedEx Ground Package System, Inc.,

2010 WL 1337031 (SD Cal. Apr. 5, 2010)............................................................................... 11 9 Whiteway v. FedEx Kinko’s Office and Print Services, Inc.,

10

2006 WL 2642528 (Sept. 14, 2006).......................................................................................... 13 Whiteway v. FedEx Office and Print Svcs., Inc.,

11 Case No. 05-CV-02320 (ND Cal. Oct. 2, 2009) ....................................................................... 12

12

Federal Statutes

13 Fed. R. Civ. P. 23 ................................................................................................................... passim Fed. R. Civ. P. 23 (b)(3).................................................................................................... 11, 12, 24

14 Fed. R. Evid. 602 .......................................................................................................................... 17

15

State Statutes

16 Cal. Bus. & Prof. Code § 17200 et. seq. ................................................................................. 14, 25 Cal. Civ. Proc. Code § 1021.5 ...................................................................................................... 14

17 Cal. Lab. Code § 201 .................................................................................................................... 14

Cal. Lab. Code § 202 .................................................................................................................... 14 18 Cal. Lab. Code § 203 .............................................................................................................. 14, 25

19 Cal. Lab. Code § 226 .................................................................................................................... 14 Cal. Lab. Code § 226.7 ........................................................................................................... 14, 25

20 Cal. Lab. Code § 512 .............................................................................................................. 14, 25

Cal. Lab. Code § 1174 ............................................................................................................ 14, 25 21 Cal. Lab. Code § 1194 .................................................................................................................. 14

22 Newberg

23 1 Newberg § 1:1 ............................................................................................................................ 22

24

1 Newberg § 1:6 ............................................................................................................................ 22 2 Newberg § 4:25 ...................................................................................................................... 7, 12

25 4 Newberg § 9:63 .......................................................................................................................... 24
5 Newberg § 16:2 ............................................................................................................................ 1 26 5 Newberg § 16:3 ............................................................................................................................ 1

27

28

-ivPlaintiffs' Opposition to Defendant's Motion to Decertify Class Action; Memorandum of Points and Authorities

Case3:07-cv-02050-SC Document212 Filed07/02/10 Page6 of 32

SCOTT COLE & ASSOCIATES, APC
ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR
OAKLAND, CA 94612 TEL: (510) 891-9800

I.

INTRODUCTION AND SUMMARY OF ARGUMENT

1

2

Despite Defendant’s promise to demonstrate a [relevant] “change” in the law and facts of this

3 case,1 – a promise that resulted in Defendant obtaining permission to conduct roughly 50 depositions 4 of class members and serve over 14,000 discovery requests on these otherwise passive participants2

5 – the landscape is no different today than it was back in May 2009 when the Court carefully

6 considered and then granted certification of this worker class. Indeed, Defendant was given wide

7 latitude this past year to develop a record showing how the adjudication of common questions would 8 not result in the efficiencies this Court observed in its May 26, 2009 class certification Order3 and/or

9 how the law now prevents class-wide treatment of these claims. As Plaintiffs predicted, Defendant’s

10 decertification motion (“Motion”) falls short of its promise, particularly since (1) this Court already

11 conducted the same legal analysis referenced in the recent legal opinions cited in the Motion, and (2)

12 any facts discovered since the certification Order cannot, by definition, constitute “changed” 13 circumstances since the Court capped the class period as of the date of the Class Certification Order.4

14

Unsurprisingly, the Motion, while acknowledging that courts must weigh the significance of

15 common issues against individual ones, does not spend much time talking about the common issues,

16 or about why trying those common issues once, for over 700 people, would not result in enormous

17 efficiencies. Instead, page after page of the Motion cites to myriad distinctions between Dollar Tree's

18 Store Managers (“class members” or “SMs”), ranging from the stores they work in and the staff they

19

20 1

In explaining the rationale for Dollar Tree’s intended discovery campaign, Dollar Tree’s

attorney stated as follows: “[MISS MC CLAIN: SO, THE LAW HAS CHANGED. AND WE WISH

21 TO PRESENT THAT TO THE COURT IN A DECERTIFICATION MOTION. THE FACTUAL

RECORD HAS ALSO CHANGED.”]. Jud.Ntc. Ex. 1, p. 17:12-14. All evidentiary citations

22 preceded by “Jud.Ntc. Ex.” are exhibited to Plaintiffs’ Request for Judicial Notice, filed herewith.

All evidentiary citations preceded by “MAK Ex.” are exhibits attached to the Declaration of Molly

23 Kuehn, Esq., also filed herewith.

2
24 3

5 Newberg on Class Actions (4th Ed. 2002) § 16:2, 16:3 Notably, at class certification, the Court did not take the job of balancing all common and

25 individual issues lightly; the Court conducted a “rigorous analysis” of the arguments contained in comprehensive briefing, examined a multitude of declarations from corporate representatives, Store
26 Managers and even one store customer, as well as various deposition excerpts, and considered an

27

otherwise extraordinarily well-developed factual record. Jud.Ntc. Ex. 2, at pp. 9:8-12 (citing Gen. Tel. Co. of the Southwest v. Falcon, 457 U.S. 147, 158-61 (1982)); see, generally, Runnings Dckt.

28 Nos. 124-168.

4

See Cruz Dckt No. 113 (ending the class period on May 26, 2009).

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Plaintiffs’ Memo. of Points and Authorities in Opposition to Defendant's Mtn. to Decertify the Class

Case3:07-cv-02050-SC Document212 Filed07/02/10 Page7 of 32

SCOTT COLE & ASSOCIATES, APC
ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR
OAKLAND, CA 94612 TEL: (510) 891-9800

1 work with to their own preferences and management styles. Also unsurprisingly, Defendant’s 2 retained expert5 agrees with Defendant that no two SMs are alike, which he takes to mean that no

3 single SM can speak with precision about the entirety of any other SM’s “experience.” This, we are

4 told, is why the class must be decertified.

5

Fatal to the Motion, however, are several keys points this Court should consider:

6

• The Court applied the proper Rule 23 analysis during last year’s certification process and, in

7

doing so, did not rely on any one fact to the “near exclusion” of others. Notably, Defendant chose not to seek an appeal of that ruling;

8

• No “change” in the facts does or even could have occurred since class certification since the

9

class period closed as of the date of that Order;

10

• The alleged “managerial” (versus “exempt”) nature of SM work and the amount of time

11

SMs spend on the mix of common work duties are “unwelcome [liability] distraction[s]”6 at

this juncture;

12

13

• Dollar Tree and its expert concede that variations in the mix of duties SMs perform (for

whatever reasons) do not change the common list of duties SMs perform (i.e., the

14

Certification Form’s list of 17 so-called “managerial” tasks, plus the Form’s clearly non-

managerial tasks). Nothing has changed there and, in fact, Dollar Tree still uses/endorses the

15

certification process today;7

16 • Despite trivial variations therein, Dollar Tree admits that SMs are shaped uniformly through

17

common training, common directives (e.g., policies, procedures, merchandising “plan-o-

grams”), common job duties, common expectations, and a common evaluation process.

18

These commonalities should be examined just once, not 700 times;

19 • Dollar Tree’s and Plaintiffs’ experts agree that the exempt/non-exempt nature of SM job

20

duties can be adjudicated on a class-wide basis (see Plaintiffs’ phased trial plan, infra);

21

22

23

24 5

Defendant’s expert, Robert Crandall, mistakenly yet repeatedly opines that the work being

done by SMs is “exempt” and that the Certification process reveals exempt-natured work. See Dckt.

25 No. 190, pp. 16:10, 17:2, 22:20. Not only is this liability evaluation irrelevant to class certification,

but Mr. Crandall himself admitted during deposition examination that he has no legal training (MAK

26 Ex. 1, p. 69:1-3) and that he should have just said that the work was “managerial” – a far cry from it

being “exempt.” (MAK Ex. 1 , pp. 70:7-14, 70:20-71:6).

27 6

Jud.Ntc. Ex. 4-L, p. 12:2.

7

MAK Ex. 1 , pp. 170:1-16; 172: 14-20 (there have been no factual changes since class

28 certification); pp. 91:2-13; 119:3-120:12 (tasks SMs perform are enumerated in the Certification

Form); MAK Ex. 2.

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Plaintiffs’ Memo. of Points and Authorities in Opposition to Defendant's Mtn. to Decertify the Class

Case3:07-cv-02050-SC Document212 Filed07/02/10 Page8 of 32

SCOTT COLE & ASSOCIATES, APC
ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR
OAKLAND, CA 94612 TEL: (510) 891-9800

• A trial plan that allows SMs to identify the percentage of time spent on each of the

1

Certification tasks eliminates the sampling concerns identified by Mr. Crandall, is closely

2

akin to the 2002-2003 survey Mr. Crandall designed and stands by, and even allows for the

use of common tools to adjudicate individual issues.

3

4

Given the availability of deposition and declaration testimony of so many SMs, it is not

5 surprising that the Motion can point to myriad rationales why SMs spend differing amounts of time

6 on their [singular] mix of work duties, yet these liability and class member-focused arguments are

7 not what class certification is about. Also not persuasive are Defendant’s arguments that some SMs

8 failed to understand what the Certification Form was asking and/or checked “no” for some weeks in

9 response thereto. As the Form explains, a “no” answer simply means that the SM spent more time on

10 the non-managerial vs. managerial tasks listed therein (again, a liability issue); a failure to

11 understand the terms used in Dollar Tree’s self-manufactured Certification Form says nothing about

12 whether this minority of hand-picked SMs performed work that was fundamentally different than

13 another SM. In the end, while Defendant has put forth some impressive charts and summaries of the

14 testimony of many people, SM individualities have not become any more “predominate” simply by

15 virtue of the number of SMs that have been deposed or the method of presenting their experiences to

16 the Court. As such, Defendant has not met its heightened burden to decertify the class.

17 II. STATEMENT OF FACTS/PROCEDURAL HISTORY8
18

19

A. UNIFORMITY IN THE SM POSITION IS EXPECTED

20

Dollar Tree is a chain retailer. From its Chesapeake, Virginia home office, it operates

21 thousands of discount stores nationwide offering merchandise at the fixed price of $1.00. Jud.Ntc.

22

23

8

This Court has already considered the common nature of SM orientation, training,

24 operational and human resource hierarchy, policies and procedures and the potential impact those

common issues have on what job duties SMs perform and how they yield common triable issues as

25 to the exempt/non-exempt nature of that work. Moreover, upon that consideration, the Court agreed

that these common issues outweighed any individual ones. As such, there seems little need to 26 regurgitate the extremely detailed evidence of that commonality – most of which having already
been exhibited in class counsel’s declarations and referenced in the class certification motion itself 27 (Jud.Ntc. Ex. 5, fns. 4-51). Plaintiffs, therefore, refer to that evidentiary record to the extent
necessary to show the regimented nature of SMs’ work. Notably, the citations in these footnotes are 28 taken entirely from testimony of Dollar Tree representatives and/or documents generated by the

company.

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Plaintiffs’ Memo. of Points and Authorities in Opposition to Defendant's Mtn. to Decertify the Class

Case3:07-cv-02050-SC Document212 Filed07/02/10 Page9 of 32

SCOTT COLE & ASSOCIATES, APC
ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR
OAKLAND, CA 94612 TEL: (510) 891-9800

1 Ex. 3A. Maintaining a low-cost operational structure is essential to its success, a feat that could only

2 be accomplished with an incredibly-efficient and centrally-controlled business model created at the

3 corporate level. Maintaining a predictable shopping experience is also critical to its success,

4 something that runs afoul of Dollar Tree’s current claims that its SMs are given great discretion to

5 make truly “executive” level decisions.

6

As for Dollar Tree’s customers, they can be sure that substantially the same $1.00 items will

7 be available for in-store purchase and will be displayed in almost exactly the same manner as they

8 are in every other store in the chain; the mix and price of products is also consistent, as is the level of

9 service customers can expect. To help realize that goal, Dollar Tree goes to great effort to

10 homogenize its store layouts, operational standards and workforce, which includes the use of SMs

11 who are expected to obediently implement company directives at the retail level. Dollar Tree

12 maintains this degree of consistency by issuing uniform policies and practices, completely uniform

13 training and training-related materials, computer applications and a host of other tools and directives,

14 all of which are guaranteed to reach and impact Dollar Tree’s retail staff vis-a-vis an identical retail

15 staffing hierarchy (including managers and various part-time personnel, the number assigned to each 16 store being dictated by the payroll budget handed down to SMs9) and a trickle-down dissemination

17 of those directives from the Virginia corporate office to Zone Vice-Presidents, Regional Directors, 18 District Managers, and the stores themselves.10 Through this reporting structure, Dollar Tree can

19 disseminate and then verify compliance with its directives at the retail store level from its home

20 office thousands of miles away.

21

22

23

24

9

See Jud.Ntc. Ex. 5, fn. 6; Jud.Ntc. Ex. 3 (payroll hours are set according to a strict formula

25 based upon a percentage of Sales Per Employee Hour; the hours are set at the regional level or

above).

26 10

Not only do SMs have access to people in each of these positions, these upper management

27

members are also closely watching the stores through an advanced information technology system which permits the monitoring and control of a multitude of daily retail operations including point-of-

28 sale data, inventory replenishment, employee scheduling, breaks and time punches. See Jud.Ntc. Ex.

5, p. 11; Jud.Ntc. Ex. 3.

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Plaintiffs’ Memo. of Points and Authorities in Opposition to Defendant's Mtn. to Decertify the Class

Case3:07-cv-02050-SC Document212 Filed07/02/10 Page10 of 32

SCOTT COLE & ASSOCIATES, APC
ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR
OAKLAND, CA 94612 TEL: (510) 891-9800

B. DOLLAR TREE VERIFIED THAT ALL SMs DID THE SAME JOB 1

2

In order to take the “guess-work” out of SMs’ work, Dollar Tree developed a “Certification

3 process” whereby SMs are expected to complete, each week, a Certification Form.11 In that process,

4 SMs are to respond “yes” or “no” to whether they spend more than 50% of their time on a set of 17

5 enumerated “managerial” duties (versus the shorter list of seemingly non-managerial tasks located at

6 the bottom of the Form). A “yes” answer means that they believe they spent most of their time that

7 week on the tasks in the “managerial” section. Although the Motion references countless reasons

8 why SMs may spend different amounts of time on the managerial duties (so much so that some SMs

9 answered both “yes” and “no” at different times throughout their Dollar Tree careers as Store

10 Managers), there is no legitimate argument that the SM job is any different than what is set forth in

11 the Certification, an expected fact insofar as the Certification set out to mirror the SM job 12 description12 and, according to Mr. Crandall (Dollar Tree’s expert), the Certification Form has been

13 used to capture information – without any apparent need for modification – for 29,431 SM

14 workweeks thus far. See Dckt. No. 190, p. 10:19-20. Given Defendant’s heavy reliance on the

15 Certification process, it is also not surprising that Mr. Crandall admits that the Certification process 16 is a scientifically “valid” and “reliable” surveying tool.13

17

Indeed, if there ever was a statement demonstrating homogeneity among SMs (and utility in

18 using class action procedures), the weekly Certification process is it: it is each SM’s statement that

19 s/he, in fact, performs the same job, every week, as every other SM. The fact that Dollar Tree

20 designed the Form and obtained these certifications every week explains its comfortability in, and

21 endorsement of, categorically (i.e., without the “individual analysis” its lawyers now claim is

22 mandatory) exempting every class member from overtime pay based upon SMs’ binary responses.

23

24 11 MAK Ex. 2; see also Jud.Ntc. Ex. 2, pp. 4-5.
25 12 See Jud.Ntc. Ex. 5, fn. 50; Jud.Ntc. Ex. 3. 13 See Dckt. No. 190, p. 11:11-16 (explaining that the Certification Form is scientifically “valid”
26 (i.e., that it “produces accurate measures of what it intends to measure”) and that it is scientifically “reliable” insofar as it provides consistently accurate responses). See also Dckt. No. 190, pp. 20:22-
27 23, 21:7-8, 21:20-22; MAK Ex. 1, p. 81:12-18. Indeed, these admissions by Dollar Tree’s own expert endorse a survey approach for determining liability, just as the Certification process has now
28 validly and reliably surveyed class members 29,431 times to determine whether they were performing their expected job duties.
-5-
Plaintiffs’ Memo. of Points and Authorities in Opposition to Defendant's Mtn. to Decertify the Class

Case3:07-cv-02050-SC Document212 Filed07/02/10 Page11 of 32

SCOTT COLE & ASSOCIATES, APC
ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR
OAKLAND, CA 94612 TEL: (510) 891-9800

1 Certainly, while the Court must now look at all common issues of law and fact (i.e. none to the “near

2 exclusion” of others) it is realities like the Certification process that speak volumes about whether 3 the claims of SMs can be adjudicated together using common tools and common proof.14, 15

4

5

C. THERE IS NO NEED TO RE-EXAMINE CLASS CERTIFICATION

6

Dollar Tree makes little or no mention of the fact that this Court already conducted the

7 requisite “rigorous analysis” of a monstrous volume of evidence and, based thereupon, granted class

8 certification. Notably, it did so pursuant to the same Rule 23 standard that has existed since 1938,

9 and did not, as Dollar Tree suggests, rely on any one item of proof to the “near exclusion” of others.

10 Indeed, the Court’s Certification Order itself explains how this Court carefully examined SMs’ job

11 duties (Cruz Dckt. No. 107, pp. 4-5), Dollar Tree’s “standardized policies and procedures” (Cruz 12 Dckt. No. 107, p. 16:11),16 common training and tools and, most telling of all, its own job duty

13 Certification process, (Cruz Dckt. No. 107, p. 16:12-21:7). This was not an example of a Court

14

15 14

Dollar Tree contends that commonality of job duties (as detailed in the Certification Form) is

16 of little consequence because what tasks SMs do does not answer the ultimate question of whether anyone is exempt or non-exempt. What this ignores, of course, is that no exemption analysis can

17 begin until the job duties to be tested are determined, making discovery of the SM task list a very

18

important first step. Moreover, to suggest a standard wherein all SMs must fall on the same side of the exemption test and that we must know that this will occur right now, would doom class

19 certification in every case since it would require liability determinations before or at the time of class certification. Rule 23 requires that common questions exist not necessarily common answers, does

20 not allow liability considerations, and does not envision that the answers to the initial common

21

questions will constitute a “soup to nuts” adjudication of the claims of every class member. Indeed, Dollar Tree offers no persuasive authority for either (1) its suggestion that everyone must fall on

22 only one side of the exemption test, or (2) that a trial plan that seeks to determine eligibility to

recover overtime pay somehow fails to promote judicial economy. 23 15 Since the time of class certification, class counsel have received 101 sworn declarations from

class members, all speaking to the commonality of the SM position. See MAK Exs. 7-108. While 24 Dollar Tree will surely complain that these declarations appear “cookie cutter” in that they recite the
same job duties being performed in near identical fashion, this is not a flaw in the declarations; the 25 declarations tell near identical stories because Dollar Tree made the job nearly identical.
16 Oddly, Dollar Tree suggests that In re Wells Fargo Home Mortg. Overtime Pay Litigation, 26 571 F.3d 953 (9th Cir. 2009) denounces consideration of a defendant’s standardized policies and
procedures at class certification. Motion, pp. 2:15-3:9. The Wells Fargo court said no such thing. In 27 fact, that Court explained that “uniform corporate policies will often bear heavily on questions of
predominance and superiority … [and] carry great weight for certification purposes. Id. at 958. At 28 most, Wells Fargo explained that trial courts should do exactly what the present Court already did a

year ago – look at all of the evidence.

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Plaintiffs’ Memo. of Points and Authorities in Opposition to Defendant's Mtn. to Decertify the Class

Case3:07-cv-02050-SC Document212 Filed07/02/10 Page12 of 32

SCOTT COLE & ASSOCIATES, APC
ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR
OAKLAND, CA 94612 TEL: (510) 891-9800

1 rubber-stamping a certification Order merely in reaction to a defendant’s blanket exemption of all

2 class members from overtime laws. Given this Court’s attention to all the evidence, Dollar Tree’s

3 contention that recent legal authority disapproves of trial courts relying on any one common factual

4 question to the “near exclusion of other factors” (i.e., the Motion’s criticism of Wang v. Chinese

5 Daily News, Inc., 231 F.R.D. 602 (C.D. Cal. 2002) (Motion, p. 7)) is a red herring: while still an

6 important factor, this Court did not rely on Wang or on any item of evidence to the near exclusion of

7 another. As such, Dollar Tree’s suggestion that this Court used the wrong standard is insupportable.

8

Finally, Dollar Tree has failed to show that its admittedly standardized training program and

9 materials, common work tools and applications, operational systems (e.g., ordering processes, plan-

10 o-gram merchandising protocols), check-listing procedures and other common tools have changed

11 since the time of class certification, despite its promise to do so. Indeed, while much ado is made

12 today about how much time is spent on tasks such as training (e.g., some SMs finish the program in

13 the anticipated eight weeks, while others learn faster), ordering (e.g., some SMs order more often

14 than others because of store size, sales levels, etc.) and/or how SMs used the tools provided (e.g.,

15 some SMs got the plan-o-grams and read them right away, while others copied them and read them

16 later), nothing in this evidence demonstrates that SMs are not charged with performing the same

17 retail functions, learning the same set of retailing skills, receiving and using the same tools or

18 anything else that would adversely affect Plaintiffs’ ability to rely on a set of core facts, policies,

19 procedures and the SM job description to adjudicate, for all class members, the exempt/non-exempt

20 nature of their work. Since each SM will make the same legal allegations and rely on the same core

21 information and call upon the same witnesses (e.g., experts, corporate representatives) and

22 documents, this case remains ideal for certification. Sav-On Drug Stores, Inc. v. Superior Court, 34

23 Cal.4th 319, 340 (2004).

24

25

26

27

28

-7Plaintiffs’ Memo. of Points and Authorities in Opposition to Defendant's Mtn. to Decertify the Class

Case3:07-cv-02050-SC Document212 Filed07/02/10 Page13 of 32

SCOTT COLE & ASSOCIATES, APC
ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR
OAKLAND, CA 94612 TEL: (510) 891-9800

II.

ARGUMENT

1

2

A. STANDARD FOR CLASS CERTIFICATION

3

1. Defendant Cannot Overcome Its Decertification Hurdle

4

While Federal Civil Procedure Rule 23 “provides district courts with broad discretion to …

5 revisit … certification throughout the legal proceedings before the court”17 Dukes v. Wal-Mart, Inc.,

6 509 F.3d 1168, 1176 (9th Cir. 2007) and see Dukes v. Wal-Mart Stores, Inc., 603 F.3d 571, 579 (9th

7 Cir. 2010) (on rehearing en banc), and while strictly speaking, the decertification “standard of

8 review is the same as a motion for class certification: whether the Rule 23 requirements are met”

9 Marlo v. United Parcel Service, Inc., 251 F.R.D. 476, 479 (CD Cal. 2008), only “‘developments in

10 the litigation, such as the discovery of new facts or changes in the parties or in the substantive or

11 procedural law, will necessitate reconsideration of the earlier order and the granting or denial of

12 certification or redefinition of the class.’” O’Connor v. Boeing North American, Inc., 197 F.R.D.

13 404, 410 (CD Cal. 2000). Even so, while changes in the law can sometimes warrant decertification,

14 the gravamen of authority addressing decertification focuses on discovery of new facts following an

15 initial order certifying a class. See, e.g., Johnson v. Big Lots Stores, Inc., 561 F.Supp.2d 567, 574

16 (ED La. 2008).

17

Presumably recognizing such legal authority, Defendant claims to have unearthed new facts

18 (or law) sufficient to unravel the propriety of certification.18 However, all of these so-called new

19 facts are just the same facts (albeit more of them) that were available and cited in connection with

20 Dollar Tree’s opposition to class certification. Even if they were not, they merely speak to the issue 21 of “eligibility for recovery” (i.e., any particular SMs’ exempt-ness),19 not to whether SMs’ job duties

22
23 17 Although numerous and substantial common issues do exist here, “[e]ven if the common questions do not predominate over the individual questions ... Rule 23 authorizes the district court in
24 appropriate cases to isolate the common issues under Rule 23(c)(4)(A) and proceed with class treatment of these particular issues.” 2 Newberg § 4:25 at 174; Jenkins v. Raymark Indus., 782 F.2d
25 468, 472 (5th Cir. 1986). 18 Numerosity, ascertainability, adequacy and typicality are apparently conceded.
26 19 “[T]he necessity for class members to individually establish eligibility and damages does not mean individual fact questions predominate. In fact, under these circumstances, it is firmly
27 established that ‘a class action is not inappropriate simply because each member of the class may at some point be required to make an individual showing as to his or her eligibility for recovery or as to
28 the amount of his or her damages.’” Reyes v. San Diego County Bd. of Supervisors, 196 Cal.App.3d 1263 (1987) (citations omitted).
-8Plaintiffs’ Memo. of Points and Authorities in Opposition to Defendant's Mtn. to Decertify the Class

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SCOTT COLE & ASSOCIATES, APC
ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR
OAKLAND, CA 94612 TEL: (510) 891-9800

1 have changed. Those kinds of facts are not helpful here since it has long since been held that “[a]

2 motion for class certification (or decertification) is not an occasion for examination of the merits of

3 the case.” Moore v. Hughes Helicopters, Inc., 708 F.2d 475, 480 (9th Cir. 1983); Jordan v. County of

4 Los Angeles, 669 F.2d 1311, 1332 (9th Cir. 1982) (certiorari granted, judgment vacated on other

5 grounds by County of Los Angeles v. Jordan, 459 U.S. 810 (1982) (“The judgment is vacated and the

6 case is remanded to the United States Court of Appeals for the Ninth Circuit for further

7 consideration in light of General Telephone Co. of Southwest v. Falcon, 457 U.S. 147 (1982).”).

8 “There is nothing in either the language or history of Rule 23 that gives a court any authority to

9 conduct a preliminary inquiry into the merits of a suit in order to determine whether it may be

10 maintained as a class action ...” Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 157 (1974). Instead, to

11 evaluate this motion, the Court need only determine if it satisfies Rule 23, not weigh competing

12 evidence. See generally Staton v. Boeing Company, 327 F.3d 938 (9th Cir. 2003). “[T]he “variable”

13 activities noted by the Defendants stem from requirements imposed upon the employees, any

14 remaining discrepancy in liability … does not warrant decertification” in the wage and hour context.

15 Chavez v. IBP, Inc., 2005 WL 6304840, *3 (ED Wash. May 16, 2005); see also Butler v. Home

16 Depot, Inc., 1997 WL 605754, *17 (ND Cal. Aug. 29, 1997); (denying decertification where the

17 defendant “both argues the merits of plaintiffs’ case and raises arguments previously considered and

18 rejected by this Court”). While Dollar Tree’s Motion does an impressive job of pointing out all the

19 reasons why some SMs may be exempt while others may not be, such evidence and argument, even

20 if it were “new” (and it is not) entirely miss the point; whether any SM is exempt or non-exempt is

21 an eligibility for recovery (i.e., a liability) question for trial, whereas class certification is merely

22 about determining whether there common questions exist, not common answers.

23

2. The Law Has Not Changed in Any Manner that Impacts This

24

Court’s Certification Order

25

26

The Motion contends that a variety of recent opinions (most notably Vinole v. Countrywide

27 Home Loans, Inc. and Wells Fargo) have impacted the predominance analysis in exemption cases.

28

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SCOTT COLE & ASSOCIATES, APC
ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR
OAKLAND, CA 94612 TEL: (510) 891-9800

1 However, while these cases do speak to the Rule 23 standard, they hardly constitute “new” law, nor

2 do they suggest that this Court erred in granting class certification.

3

First, Defendant suggests a new standard arose out of Vinole, 571 F.3d 935 (9th Cir. 2009)

4 yet it is clear that Vinole merely adopted “an approach that takes into consideration all factors that

5 militate in favor of, or against, class certification.” Vinole, 571 F.3d at 946. As Vinole further

6 explained, “[a] district court abuses its discretion in relying on an internal uniform exemption policy

7 to the near exclusion of other factors relevant to the predominance inquiry.” Id. at 946. What

8 Defendant fails to point out, however, is that this has always been the Ninth Circuit’s standard and is

9 the same standard that the present Court applied when it relied on all the evidence, made evidentiary 10 findings on all the evidence and performed a comprehensive Rule 23 analysis.20

11

Similarly, Dollar Tree’s reference to Wells Fargo is not helpful, insofar as that court, just like

12 the Vinole court, merely “caution[ed] against placing too much weight on an internal policy of 13 classifying all members of a particular class of employees as exempt”21 – again, nothing different 14 than what this Court already did in last year’s certification Order.22 Nonetheless, as its own citation

15 to Wells Fargo reveals, uniform corporate policies carry “great weight” in the predominance and

16 superiority analysis. Wells Fargo at 958; see also fn. 16, supra. Moreover, on remand, Judge Patel

17 confronted a situation in Wells Fargo where representative testimony could be not permitted to

18 facilitate exemption determinations, a direct result of the fact that Wells Fargo involved the “outside

19 salesperson” exemption and the workers’ job duties and the location where those duties were

20 performed was never established. See In re Wells Fargo Home Mortg. Overtime Pay Litigation, 2010

21 WL 174329 (ND Cal. Jan. 13, 2010). In this case, any given SM can speak in a “representative”

22

23 20

See fn. 3, supra; Jud.Ntc. Ex. 2, pp. 16:10-15; Jud.Ntc. Ex. 3.

24

21 Notably, neither Vinole nor Wells Fargo prohibit trial courts from considering internal policies, instead holding that they should not necessarily weigh them more heavily than other

25 evidence. Indeed, if Vinole or Wells Fargo did ban evaluation of a defendant’s internal policies, then those opinions would be bad law, since the Rule 23 standard has always been to examine the totality
26 of all common and individual factual and legal issues.

27

22 The Motion also suggests that the common S.O.P.s Dollar Tree maintains should not be considered in evaluating class certification. However, as its own citation to Wells Fargo reveals,

28 uniform corporate policies carry “great weight” in the predominance and superiority analysis. Wells

Fargo, 571 F.3d. at 958; see also fn. 16, p. 7, supra.

-10-

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SCOTT COLE & ASSOCIATES, APC
ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR
OAKLAND, CA 94612 TEL: (510) 891-9800

1 capacity about the uniform job duties which were all performed in Dollar Tree retail stores and

2 Plaintiffs’ trial plan addresses any variations in SMs’ allocations of work time. Id. at *7-8. Finally, it

3 is instructive to note that on remand, Wells Fargo relied heavily on Morgan v. Family Dollar, 551

4 F.3d 1233 (11th Cir. 2008) (an executive exemption case) to support the proposition that

5 representative testimony is only allowed in certain contexts, the “executive” exemption being one of

6 them:

We reject Family Dollar’s argument that the executive exemption defense is so

7

individualized that the testifying Plaintiffs did not fairly represent the non-testifying

8

Plaintiffs. For the same reasons that the court did not err in determining that the

Plaintiffs were similarly situated enough to maintain a collective action, it did not err

9

in determining that the Plaintiffs were similarly situated enough to testify as

10

representatives of one another.” Morgan, 551 F.3d at 1280.

11

Finally, Dollar Tree cites to the trial court decisions in Sullivan, Hernandez, Howard,

12 Weigele, Pablo, Whiteway and Mendoza for support, yet mischaracterizes them as challenging the

13 present Court’s analysis. Each of these court’s rulings, however, merely reiterated the long-standing

14 rule that predominance cannot be based solely on an employer’s blanket exemption policy and/or

15 that factual patterns in which standardized practices and procedures do not exist substantially

16 undermine commonality:

17

•

Sullivan v. Kelly Services, Inc., 2010 WL 1729174, *7 (ND Cal. April 27, 2010)

(holding that “predominance cannot be based solely on an employer’s blanket exemption policy but 18 that other uniform corporate policies could satisfy Rule 23(b)(3)”);

19

•

Hernandez v. United Auto Credit Corp., 2010 WL 1337702, *5 (ND Cal. Apr. 2,

20 2010) (holding that courts should not place “too much weight on an internal policy of classifying all members of a particular class of employees as exempt”);

21

•

Howard v. Gap, Inc., Slip Copy, 2009 WL 3571984, *5 (ND Cal. 2009) (holding that

22 compelling employees to use wages to purchase Gap clothing as a condition of employment, without

23 the benefit of a written policy, would likely require individualized inquiries into what each class member was instructed to do);

24

•

Weigele v. FedEx Ground Package System, Inc., 2010 WL 1337031 (SD Cal. Apr. 5,

25 2010) (not published) (holding merely that individual issues outweighed common ones);

26

•

Pablo v. Servicemaster Global Holdings, Inc., 2009 WL 2524478 (ND Cal. Aug. 17,

27 2009), at *5-6 (holding that employees’ discretion in setting their work schedules and in conducting

home inspections required an individual determination as to whether the outside salesperson 28 exemption applied);

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SCOTT COLE & ASSOCIATES, APC
ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR
OAKLAND, CA 94612 TEL: (510) 891-9800

1

•

Whiteway v. FedEx Office and Print Svcs., Inc., Case No. 05-CV-02320 (ND Cal.

Oct. 2, 2009) (holding decertification proper where court over-relied on Wang decision in original 2 certification order).

3

4

Perhaps the most perplexing inclusion in Dollar Tree’s Motion is to Judge Otero’s opinion in

5 Mendoza v. Home Depot, U.S.A. Inc., 2010 WL 424679 (CD Cal. 2010) insofar as Mendoza

6 specifically referenced this (Cruz) Court’s certification Order and already expressly distinguished the

7 evidence presented in Cruz from the evidence submitted in Mendoza. As that Court noted:

8

•

“Accordingly, this Training Guide is different than those formal policies at issue in

9 the cases relied upon by Plaintiffs. See Cruz v. Dollar Tree Stores, Inc., 2009 WL 1458032, *8
(N.D.Cal. May 26, 2009) (defendant's uniform policy required employees to certify what they had 10 spent most of their time on each week).” Mendoza, 2010 WL 424679 at *8;

11

•

“[Class certification is denied] because there is no uniform policy or standard

12 operating procedure upon which all ASMs and training ASMs rely, [and] it is likely that each ASM’s

and training ASM’s experience is unique.” Id.; and 13

14

•

“…Plaintiffs have offered no compelling evidence to suggest that the SOPs provide

uniformity for the ASMs. Instead, Plaintiffs have only submitted a table of contents from an SOP,

15 which is insufficient to show a comprehensive uniform policy” Id.

16

Since each of the cases that Dollar Tree cites relied on factual predicates very different than

17 the evidentiary record available here, this Court’s prior certification analysis and ruling should stand.

18

19

B. THE PREDOMINANCE TEST EXAMINES THE SIGNIFICANCE, NOT

JUST THE QUANTITY, OF COMMON AND INDIVIDUAL ISSUES

20

21

Rule 23(b)(3) “focuses on the relationship between the common and individual issues”

22 (Hanlon v. Chrysler Corp., 150 F.3d 1011, 1022 (1998)) and requires that common issues

23 predominate. However, “predominance” is determined not by counting the number of common

24 issues, but by weighing their significance. Mullen v Treasure Chest Casino, LLC, 186 F.3d 620, 627

25 (5th Cir. 1999), Medrazo v. Honda of North Hollywood, 166 Cal.App.4th 89, 99-100 (2008). What’s

26 more, class certification does not require or even expect an absence of individual issues. As

27 explained in Professor Newberg’s treatise:

28

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SCOTT COLE & ASSOCIATES, APC
ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR
OAKLAND, CA 94612 TEL: (510) 891-9800

The test was not meant to require that the common issues will be dispositive of the

1

controversy or even be determinative of the liability issues involved. ... In addition,

2

the predominance requirement is not a numerical test that identifies every issue in the

suit as suitable for either common or individual treatment and determines whether

3

common questions predominate by examining the resulting balance on the scale. A

4

single common issue may be the overriding one in the litigation, despite the fact that the suit also entails numerous remaining individual questions. 2 Newberg § 4:25.

5

6

Despite Defendant’s suggestion, in the overtime exemption context, the predominance of

7 common issues has been frequently expressed. In such cases, where the “predominant issue in

8 dispute is how the various tasks in which [class members] actually engaged should be classified as

9 exempt or nonexempt,” “common questions” are likely to predominate. Sav-On, 34 Cal.4th at 330.

10 In determining whether sufficient common questions of law or fact exist, inquiry is directed toward a

11 review of “what type of questions - common or individual - are likely to arise in the action” in

12 considering “whether the theory of recovery advanced by the proponents of certification is, as an

13 analytical matter, likely to prove amenable to class treatment.” Sav-On, 34 Cal.4th at 327.

14

Given the Sav-On test, “it is no accident that ‘wage and hour disputes...routinely proceed as

15 class actions.’” Ghazaryan v. Diva Limousine, Ltd., 169 Cal.App.4th 1524, 1538 (2008) (citing

16 Prince v. CLS Transportation, Inc., 118 Cal.App.4th 1320, 1328 (2004)); see also Jaimez v.

17 DAIOHS USA, Inc., 181 Cal.App.4th 1286, 1301 (2010); Sav-On, 34 Cal.4th at 340; Whiteway v.

18 FedEx Kinko’s Office and Print Services, Inc., 2006 WL 2642528, *11 (ND Cal. Sept. 14, 2006) (“A

19 class action is superior to multiple individual lawsuits. The needless expenditure of additional time,

20 effort and money that would be attendant to numerous individual suits is greatly reduced, and the

21 potential for differing outcomes is avoided as well.”). In wage and hour class actions, “the issues

22 slated for contest are primarily common issues involving common evidence.” Bufil v. Dollar

23 Financial Group, Inc., 162 Cal.App.4th 1193, 1208 (2008); accord Sav-On, 34 Cal.4th at 332-33

24 (noting that the facts were well-suited for class treatment where the “class-wide policy does not vary

25 from store to store, or employee to employee” and evidence existed of “centralized practices” which

26 showed “common behavior towards similarly situated” employees); see generally Rose v. City of

27 Hayward, 126 Cal.App.3d 926 (1981) (noting that class certification is particularly appropriate to

28 determine issues related to employee compensation).

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SCOTT COLE & ASSOCIATES, APC
ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR
OAKLAND, CA 94612 TEL: (510) 891-9800

1.

All Class Claims Share the Same Questions of Law

1

Class members here do not simply share some common legal issues; they share them all - a 2

point proven at class certification and never since challenged. All SMs will participate, in one way or 3
another,23 to recover under identical legal theories, and will seek identical forms of damages and 4
penalties.24 Moreover, depending on the specific trial plan ultimately adopted by this Court, all SMs 5

will look to the same trial tools to make a claim for liability and damages and will rely on the same 6

expert testimony and/or other documents for support. The absence of any individual legal issues 7

strongly supports denial of the Motion. 8

9

2.

Common Questions of Fact Predominate

10

In evaluating the utility of class treatment, the Court may also examine whether questions of

11 fact common to class members predominate over questions affecting only individual members. Here, 12 the “one size fits all”25 nature of the SM job literally begs for class treatment of these workers’

13 claims. Once looking past the admittedly countless nuances that make any two people holding any

14 one job position appear distinct (i.e., the focus of the Motion), the SM position is easy to dissect – a

15 fact that permits adjudication of the common duties on a class-wide basis.

16

Dollar Tree goes to great lengths to bombard SMs with communications concerning the

17 routinization of their job duties. Unlike other chain retailers that simply adopt uniform policies and

18 procedures and then hope that they are followed, Dollar Tree also insists that SMs certify every week

19

20

21

23 Dollar Tree takes issue with the fact that a trial plan has yet to be approved. However, as this Court knows, Plaintiffs filed a Motion for Interim Case Management Order on February 9, 2010

22

seeking approval of a trial plan. Cruz Dckt. No. 138. The Court denied that Motion as “unnecessary” and set a Case Management Conference instead. Cruz Dckt. No. 141. Since then, all efforts have

23

been toward decertification. As such, suggesting that no trial plan is available is plainly insupportable.

24
24

See, e.g., Dckt. No. 1; Complaint, ¶ 1 (alleging claims under Cal. Lab. Code §§ 201-203, 226,

226.7, 512, 1174 and 1194, as well as Cal. Civ. Proc. Code § 1021.5 and Cal. Bus. & Prof. Code §§

25 17200 et. seq.-17208.

25 While Plaintiffs have never suggested that SMs’ work time be identically allocated from day 26 to day or even between SMs, there is significant commonality with regard to what tasks SMs

perform, the resources they use, the environment within which they work, and the directives received 27 from Dollar Tree’s corporate office; the fact that a SM may primarily perform “ordering” functions

one day, yet primarily “receiving” duties the next, is of no consequence. All SMs “order” and 28 “receive” product in varying degrees, and the impact that this has on liability (i.e., how often they do

these tasks) is a question that need be asked at trial.

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SCOTT COLE & ASSOCIATES, APC
ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR
OAKLAND, CA 94612 TEL: (510) 891-9800

1 that the expected tasks are being performed. Since Dollar Tree cannot directly observe California

2 SMs from its corporate vantage point in Virginia, it must rely on strict compliance with common

3 policies and procedures and the homogeneity of SMs to ensure a trademark “look and feel” (and, 4 thus, profitability)26 of every store.27 Dollar Tree ensures this, in large part, through its own

5 Certification process – a process that Defendant has never questioned until it became more

6 advantageous to do so (i.e., to challenge class certification).

7

Saying that the Certification process is calculated to ensure uniformity is not just advocacy;

8 Dollar Tree admits it. To begin with, Dollar Tree intended for the Certification Form’s language to

9 track that of the job description. Moreover, if a SM fails to submit a Certification Form for a given 10 week, Dollar Tree’s Human Resources department makes contact to find out why.28 If the report of

11 any SM’s work deviates from the norm (i.e., a “no” response), steps are taken to get his/her work

12 back on track. To suggest now that SM’s work is unpredictable or that the Certification is not

13 indicative of the work that SMs perform defies credibility.

14

Despite suggestions to the contrary, the Motion is careful not to expressly claim that the

15 Certification Form tasks differ from those SMs perform; rather, Dollar Tree merely points to

16 examples of (1) SMs who appear confused about what the Certification language (which Dollar Tree

17 drafted) meant or, at least, about the process, or (2) out of context statements by class counsel (which

18 are, as a matter of law, not evidence) and/or their expert – all points that are fleshed out in detail

19 below. Given that this Motion turns on whether the duties of SMs can be determined by looking to a

20 finite task list (which can later be adjudicated as to its overall exempt-ness), it is a glaring fact that

21

22 26 With 2008 revenues of $4.2 billion, the nexus between centralized control and profitability
23 can almost be presumed. See Jud.Ntc. Ex. 3A. 27 See Jud.Ntc. Ex. 5, fn. 63; Jud.Ntc. Ex. 3 (SMs’ duties/responsibilities are nearly identical in
24 all states); see also MAK Ex. 1, p. 44:10-22 (even out-of-state SMs work under the same job description and with the same tools); p. 91:2-13 (a list of SM duties was collected for a prior survey
25 which Mr. Crandall designed and for Dollar Tree’s certification process). 28 See Dckt. No. 124, fn. 65; Jud.Ntc. Ex. 3. It does not matter whether SMs check “yes” or
26 “no” on the Certification Form. SMs are not paid overtime in either case because Dollar Tree already knows what SMs are doing and it does not expect their jobs to change. This truth shows that Dollar
27 Tree endorses not only the use of surveys generally, but also the class-wide treatment of SMs without the need for an “individual inquiry” into the nature of their work. Defendant cannot now
28 argue that the same information upon which it decided to exempt SMs (and which is still endorses today) are suddenly inadequate.
-15-
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SCOTT COLE & ASSOCIATES, APC
ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR
OAKLAND, CA 94612 TEL: (510) 891-9800

1 the Motion never affirmatively states that the Certification Form is non-representative of SMs’ job

2 duties. Given that Defendant has used this certification process for years (with no indication of

3 changing it now), and that its own expert admits that the Certification Form is both scientifically

4 “valid” and “reliable,” this Court should accept that the SMs perform the common tasks listed

5 therein.

6

7

a. SMs Perform the Same Job Whether or Not They

Understood Dollar Tree’s Certification “Process”

8

9

One suggestion that SMs do not share a common task list is the Motion’s reference (p. 10:23-

10 26) to the testimony of six SMs who either did not carefully consider and/or sometimes

11 misunderstood the certification process. Thereupon, Dollar Tree leaps to the conclusion that these

12 individuals did not perform the same work as the remaining class members. This is an irrational

13 argument, particularly when considering that even a “no” response on the Certification Form simply

14 means that the SM spent less than 50% of his/her time on the so-called managerial portion (the top 15 portion) of the Certification Form.29 When considering that the SMs also perform tasks that Dollar

16 Tree admits are non-managerial (i.e., those tasks listed in the bottom portion of the Certification

17 Form), either a “yes” or “no” response is consistent with the notion that the Certification Form

18 provides a complete list of SM duties (i.e., that SM duties are easily ascertainable for trial purposes),

19 a fact that weighs heavily in favor of class certification.

20

Furthermore, it would be unjust to fault any SM for being unclear about the certification

21 process. Dollar Tree offers no evidence that it gave SMs any training about what tasks are deemed

22 “managerial” and no evidence that any SM (1) participated in drafting the Certification Form or (2)

23 was consulted regarding the phraseology of the tasks listed therein. Finally, merely being confused

24 about either the terms contained in the Certification Form or the purpose of the process is not 25 evidence that SMs do fundamentally different tasks.30

26

27 29

MAK Ex. 2.

30 Dollar Tree misstates the testimony of some SMs (Motion, p. 10: 25-26) who filled out the

28 Certification Form incorrectly (e.g., SM Sanders explained, in his deposition at p. 85:16-18, that he

was directed to record a Certification Form response for weeks when he was not the manager; SM

-16-

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SCOTT COLE & ASSOCIATES, APC
ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR
OAKLAND, CA 94612 TEL: (510) 891-9800

b.

Citations to Class Counsel’s Discovery Objections and

1

Courtroom Advocacy are not Evidence

2

3

In complete disregard of its own expert, its own corporate representatives, and the use of the

4 Certification Form over 29,000 times now, Dollar Tree suggests that the SM job is different than

5 what the Form portrays, and for alleged proof of that, cites to statements of class counsel and its

6 expert. (Motion, pp. 8:12-9:11.) Like the ad nauseum liability arguments, this evidence is as

7 unpersuasive as it is inadmissible. Indeed, statements by counsel carry no evidentiary weight. See,

8 e.g., Hynix Semiconductor, Inc. v. Rambus, Inc., No. CV-00-20905 RMW, No. C-05-00334 RMW,

9 No. C-06-00244 RMW, 2008 Lexis 11765, *20 (ND Cal. Feb. 2, 2008). Also inadmissible are

10 statements by persons lacking firsthand knowledge of the facts. Fed. R. Evid. 602.

11

First, class counsel do not purport to be subject matter experts regarding Dollar Tree’s

12 operations. Moreover, statements by class counsel taken out of context are not proof that the SM

13 position is any different than the true evidence demonstrates. As explained in the declarations of

14 class counsel: (1) the exempt-ness of SMs’ duties is a trial question that class counsel should not

15 address (much less attempt to answer) at this juncture, (2) class counsel’s objection that Dollar

16 Tree’s Requests for Admissions were overbroad was not an opinion that the job duties were

17 overbroad but, rather, a reaction to the use of certain descriptors (i.e., 48 different duties) that Dollar

18 Tree’s counsel unilaterally infused into the discovery process, and (3) the reference to a workweek

19

20

Hawley explains, in his deposition at p. 26:16-21, that his responses were accurate). Defendant’s 21 allegations that a few SMs were dishonest (Motion, pp. 10:27-11:5) – which flies in the face of
Defendant’s own expert, who assures us that we can rely on what SMs certify (see fn. 13, supra) – 22 either overstates what those SMs actually said and/or fails to reveal what other, more-compelling

facts demonstrate (e.g., SM Armstrong explained, in his deposition at p. 27:7-18, that he was coerced 23 to sign “yes” for fear of losing his job; SM Ayala explains, in his deposition at p. 135:10-12, that he

was specifically instructed only to answer “yes”; SM Dougherty explained, in her deposition at p. 24 69:3-4, that she was in fear of losing her job; SM Lugo explained, in her deposition at p. 25:23-25,

that she was threatened). See also Martinez depo., p. 52:3-15; Penunuri depo., p. 38:24-25; Walton 25 depo., p. 42:5-7; Whitton depo., p. 24:8-9 (all pages cited here are included in deposition excerpts

filed by Dollar Tree).

26

Rationales for these actions aside, even if there remain questions as to the credibility of some

SMs, this is merely an unfortunate reality of litigation (United States v. Scheffer, 523 U.S. 303, 313 27 (1998)) which, although not condoned by anyone, does not render this case any more or less

appropriate for class certification than another. Fortunately, Plaintiffs’ trial plan would be 28 implemented under the watch and protection of the Court to avoid any pressure related to retaliation

and to otherwise achieve accurate responses.

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SCOTT COLE & ASSOCIATES, APC
ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR
OAKLAND, CA 94612 TEL: (510) 891-9800

1 by workweek analysis of SMs’ time allocations was nothing more than class counsel’s legal

2 argument that Defendant, theoretically, could be held to a legal burden of establishing exemption on 3 a weekly basis.31 See MAK Decl., ¶¶ 3-6; Cole Decl., ¶¶ 3, 4.

4

Second, why the Motion (p. 9:6-7) cites to Dr. Lewin’s deposition response that the duties

5 were “overly broad” is a mystery. As Mr. Lewin has made clear, he has no firsthand knowledge of

6 the elements of the SM position, and was not retained to perform and, thus, did not perform, any 7 primary research into what SMs do. MAK Ex. 3, ¶¶ 8, 10; MAK Ex. 4, ¶¶ 3, 9, 10, 17.32 Without

8 direct knowledge of what SMs do, his opinion about whether the Certification Form is either broader

9 or narrower than what SMs actually do is inadmissible. Ironically, the sole expert who claims to

10 know details of what SMs do is Dollar Tree’s expert, and he says (just like Defendant’s corporate 11 representatives have said)33 that the Certification Form does represent what SMs do.34 The citations

12 to counsel’s advocacy and inadmissible deposition statements of Plaintiffs’ expert do not support the

13 Motion.

14

15

3.

How Much Time Managers Spend on Any Work Task Is

Presently Irrelevant

16

17

In this Opposition, Plaintiffs do not seek a liability determination or to challenge Defendant’s

18 likely argument that variations exist in the mix of actual work activities undertaken by individual

19 class members or the amount of time spent from one day to the next on these tasks. Indeed, it is of no

20 consequence to say that some degree of uniqueness exists between any two people holding any 21 singular job position.35 Certification of a worker class does not demand complete uniformity at levels

22 of minutia – only that the common issues predominate in their importance to the overall dispute.

23

24

31 Bell v. Farmers Ins. Exchange, 115 Cal. App.4th 715 (2004). Although class counsel never 25 said that a trial plan must proceed on a per workweek basis, the ongoing use of a weekly

Certification Form reveals that the exemption could be examined in this frequency.

26 32

See also MAK Ex. 5, p. 53:6-20.

33 See Jud.Ntc. Ex. 5, fns. 30 and 50; Jud.Ntc. Ex. 3.

27 34 MAK Ex. 1, pp. 91:2-13; 119:3-120:12 (SM tasks are enumerated in Certification Form).

35 “[N]either variation in the mix of actual work activities undertaken during the class period by

28 individual [class members], nor differences in the total unpaid overtime compensation owed each

class member, bar class certification as a matter of law.” Sav-On, 34 Cal.4th at 335. Dollar Tree

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Case3:07-cv-02050-SC Document212 Filed07/02/10 Page24 of 32

SCOTT COLE & ASSOCIATES, APC
ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR
OAKLAND, CA 94612 TEL: (510) 891-9800

4.

The Motion Fails to Observe Overwhelming Evidence of

1

Commonality

2

3

As noted above, Defendant has failed to keep its promise to demonstrate a factual change

4 since entry of last year’s certification Order. Indeed, the factual predicate for this Court’s Order still

5 exists in its entirety today. Although Plaintiffs’ class certification motion discusses many factual

6 commonalities, a few of them are refuted in the Motion and, thus, warrant a reply:

7

8

Plaintiffs’ Class Certification

Defendant’s “New” Evidence

Motion Evidence:

and Plaintiffs’ Response

9 SMs are molded through a uniform training The Motion claims that training is not

10 experience, including completion of a standardized because (1) employees promoted comprehensive training program, standardized as from within underwent an abbreviated version of

11 to substance, instruction protocol, length, MIT training called “Career Path” training

oversight and materials utilized, even before a whereas outside hires underwent the full MIT 12 SM is assigned to a store. Dollar Tree policy program, and (2) because some SMs were

13 favors promotion to the SM position of trained while working at the stores. However, individuals who are already employees. Thus, this says nothing about the training

14 before an employee becomes a SM, s/he will tools/materials they used, the skills they were

15

oftentimes have already been thoroughly steeped taught, or the comprehensiveness of what they in the Dollar Tree culture and be intimately learned. Just because a SM promoted from

16 familiar with its retail operations, sometimes within the company already has basic Dollar

through assignment to numerous retail Tree retailing skills (and, thus, does not need to

17 locations.36

learn the particular modules of the MIT

18

program) does not mean s/he takes on the SM position with any more or less training as an

19

outside hire who undergoes all eight weeks.

Trivial distinctions aside, the company’s goal is

20

to offer consistent SM training.37

21 Irrespective of the store, SMs are given and told The Motion cites minor variations in how often to use common tools such as myriad written and certain SMs used (or could remember using) the

22 electronically accessible documents, computer “Playbook,” “Seasonal Planner” and/or

23

24

25 cannot legitimately reject this notion insofar as Dollar Tree itself endorsed class wide treatment of its
26 SMs as exempt based on common representational evidence. 36 See Jud.Ntc. Ex. 5, pp. 6-7 and fns. 19-24; Jud.Ntc. Ex. 3. The company’s goal is to be as
27 consistent as possible with the SM training program. Training uniformity is ensured through the use of Regional Training Managers and checklists, among other things.
28 37 The existence of uniform training makes the instant case easily distinguishable from Mendoza where there were no standard operating procedures for training.
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Case3:07-cv-02050-SC Document212 Filed07/02/10 Page25 of 32

SCOTT COLE & ASSOCIATES, APC
ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR
OAKLAND, CA 94612 TEL: (510) 891-9800

1

Plaintiffs’ Class Certification Motion Evidence:

Defendant’s “New” Evidence and Plaintiffs’ Response

2 applications, bulletins and planners which direct conducted “Store walks.” The frequency of these

SMs how to merchandise their stores. 38

activities and use of these tools speaks to liability

3

(whether more than 50% of any SM’s time is

4

spent on exempt tasks), not certifiability of the class. Everyone is expected to use these tools and

5

perform these tasks.39

Stores are primarily subject to an ASR Evidence of how every SM has a different 6 [Automatic Stock Replenishment] system which “ordering experience” falls short of proving that

7 performs ordering for SMs; beyond that, SMs are ordering is not part of the SM job task list; it directed by the home office regarding what merely addresses the varying amounts of time

8 products to carry, how much to order, what SMs spend ordering.

price to charge, and where, when and how to 9 display those products. 40

10

11

As the Court can see, as with the remainder of the Motion, Dollar Tree’s references to how

12 SMs approach these common tasks are trivial variances at best. To the extent they significantly

13 impact SMs’ work, that impact only goes to the amount of time needed to perform the tasks – a

14

15

16

17 38 See Jud.Ntc. Ex. 5, fn. 33; Jud.Ntc. Ex. 3 (There is no change in how SMs fulfilled their
18 duties. Neither new products nor new tools affect SMs’ job duties. SMs receive promotional materials, newsletters, Freight Flow standards, merchandise display standards, a voluminous Forms
19 & Procedures Manual, “COMPASS” employee schedules, daily planners, monthly planners, weekly merchandise bulletins and plan-o-grams. Daily Planners require the SM to perform certain tasks
20 throughout the day. Monthly Planners dictate floor schematics. SMs receive a “Playbook,” where they are to keep the designs for end caps and planning instructions for moving freight to the floor).
21 Evidence such as this supports the fact that all SMs perform the same work (in part, because they are directed to use the same tools, programs and promotional guides).
22 39 See Jud.Ntc. Ex. 5, fn. 13; Jud.Ntc. Ex. 3 (SMs are expected to follow policies and procedures). In fact, in the only instance where the Motion cites to a SM (SM Gore) not having
23 walked the store, it, like many of its references, misrepresents witness testimony. SM Gore clearly states that he did not understand the term “store walk” but that he commonly surveyed the store.
24 MAK Ex. 6, pp. 65:18-25, 73:15-22. 40 See Jud.Ntc. Ex. 5, pp. 8-9; Jud.Ntc. Ex. 3 (ASR tracks cashier sales and, when a product
25 reaches a pre-defined quantity, it is automatically re-ordered. “Checklisting” requires each SM to ensure that every SKU in the Order Book is represented in the store in the correct quantity;
26 exceptions must be approved by upper management. Weekly Merchandise Bulletins, sent from Virginia, instruct SMs on specific displays to build, when and how seasonal merchandise should be
27 brought to the floor, stockroom organization, and other processes. SMs are expected to follow merchandise display standards. SMs are given “Routine & Guidelines” which dictate what they
28 should do throughout the day with task checklists. The “Daily and Weekly Store Routine” also sets SM routine.).
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SCOTT COLE & ASSOCIATES, APC
ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR
OAKLAND, CA 94612 TEL: (510) 891-9800

1 liability determination addressed in Plaintiffs’ trial plan.41 Nothing about how SMs allocate their

2 time speaks to the utility of adjudicating common issues for all SMs in one trial.

3

4

C. A CLASS ACTION IS THE SUPERIOR METHOD OF ADJUDICATING THESE WAGE AND HOUR CLAIMS

5

6

California courts have pointed out the many public policy considerations that favor the use of

7 the class action mechanism in wage and hour cases in particular. First, individual awards in these

8 types of cases tend to be modest such that the availability of a class action claim plays “an important

9 function in enforcing overtime laws by permitting employees who are subject to the same unlawful

10 payment practices a relatively inexpensive way to resolve their disputes.” Gentry, 42 Cal.4th 443,

11 459 (2007); see also Ghazaryan, 169 Cal.App.4th at 1538 (“We see no advantage to either party to

12 resolution of this question on a piecemeal basis and agree with [plaintiff] such a prospect would

13 jeopardize the ability of employees to find competent representation if restricted to their own 14 individual claims.”).42 Second, the class action vehicle allows many employees, who may not

15 otherwise file an individual suit due to fear of retaliation from their current and/or future employers,

16 to safely have their day in court as a member of the class. See Gentry, 42 Cal.4th at 459. Finally,

17 class actions serve to inform and protect employees who (but for a lawsuit such as this) may not

18 otherwise become aware that their rights are even being violated. Id. at 461. As the Gentry court

19 concluded, “absent effective enforcement” of wage and hour matters in class actions, “the

20

21

22 41 See, e.g., Motion, p. 15:17-27 (explaining, for example, that SM Buitron spent 50% of her time supervising while SMs Faria and Patrick spent 80%, and that SM Moore supervised
23 “properly”). Such variances do not undermine the preponderance of common issues.

24

42 It would be far more costly and time consuming for each class member, separately, to initiate litigation against Dollar Tree, seek and compel discovery of its policies and procedures, take

25 multiple depositions, retain experts and try the numerous issues present in this case on their own, rather than participating (as a class member) in the adjudication of the claims within the already
26 pending action. Moreover, separate lawsuits would require a multitude of courts and juries to

27

analyze the same core evidence, thereby placing needless costs and burdens on the judicial system. Finally, the disparity in resources between class members, on the one hand, and an extraordinarily

28 large private employer such as Dollar Tree on the other could easily intimidate and dissuade

potential plaintiffs from proceeding individually.

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SCOTT COLE & ASSOCIATES, APC
ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR
OAKLAND, CA 94612 TEL: (510) 891-9800

1 employer’s cost of paying occasional judgments and fines may be significantly outweighed by the 2 cost savings of not paying overtime.” Id. at 462.43

3

Without a doubt, Defendant will continue to vigorously contest liability, meaning that,

4 without certification, the multiplicity of trials will result in an enormous waste of judicial and party

5 resources. In the end, as a practical matter, the only alternative to maintaining certification of this 6 class is to force over 700 SMs to file individual actions or abandon their rights altogether.44

7

D. CLASS CERTIFICATION PERMITS USE OF A STREAMLINED TRIAL

8

PLAN

9

10

At its core, class action procedures are expected to achieve significant judicial economies,45

11 such as the resolution of over-arching common issues (e.g., whether Dollar Tree’s expectations for

12 the SM job, the exempt-ness of job tasks, damage/penalty entitlements) and avoidance of seriatim

13 trials for each class member. Ultimately, determining the level of economy gained through certifying

14 a class requires consideration of a variety of factors, ranging from the time and resources saved in 15 conducting discovery for an entire class at one time, to the potential collateral estoppel effect of 16 Defendant’s admissions, to the availability of “innovative procedural tools”46 for trial. Class

17 certification here allows for tremendous and varied forms of efficiency, despite Defendant’s singular

18 focus on trial efficiency.

19

20

21

22

23

24

43 Gentry, 42 Cal.4th at 460 (noting that justification sometimes exists for class certification even in close call cases where certain statutory requirements are “otherwise questionable”).

44
25

“Where it is not economically feasible to obtain relief within the traditional framework of a

multiplicity of small individual suits for damages, aggrieved persons may be without any effective

26 redress unless they may employ the class action device.” 1 Newberg § 1:6 at 26.

45 1 Newberg § 1:1, pp. 2-3 (citing In re Joint E & S Dist. Asbestos Litig., 129 Bankr 710, 802 27 (E & SDNY 1991) (recognizing the flexibility of the class action tool for meeting procedural barriers

to justice, and noting that the major advantage of class actions are the promotion of judicial economy 28 and efficiency).

46

Sav-On, 34 Cal.4th at 339.

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SCOTT COLE & ASSOCIATES, APC
ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR
OAKLAND, CA 94612 TEL: (510) 891-9800

1.

Plaintiffs Have Repeatedly Proposed A Consistent Trial Plan

1

2

Despite Dollar Tree’s labelling of Plaintiffs’ trial plan efforts as “scattershot,” nothing about

3 that plan is unfocused or has ever changed. This court saw the trial plan outlined in Plaintiffs’ class

4 certification motion, and it is the same phased approach as set forth here. Indeed, despite what Dollar

5 Tree thinks class counsel has said, it has always been Plaintiffs’ proposal to adjudicate each of the 6 SM duties as to their exempt-ness.47

7

On February 9, 2010, Plaintiffs filed a Motion for Case Management Order No. 1, which,

8 inter alia, proposed this phased trial approach to adjudication of common, and then individual,

9 issues. Cruz Dckt. No. 138. Therein, they requested that this Court enter its “first post-certification

10 Case Management Order (CMO) so that discovery and other pre-trial activity [could] begin in a

11 prompt but efficient manner.” Cruz Dckt. No. 138, p. 3:6-7. In that motion, rather than presuppose

12 what this Court had in mind for managing the trial proceedings before it, Plaintiffs sought a

13 determination as to “(1) how many class members will ultimately testify and (2) who those exemplar

14 trial plaintiffs [would] be.” Cruz Dckt. No. 138, p. 3:16-17. The following day, this Court entered an

15 Order denying “Plaintiffs' Motion as unnecessary” (Cruz Dckt. No. 141 at 2:4-5) on the basis that

16 “the issues raised in the Motion can be addressed at the March 5, 2010 Case Management

17 Conference.” Cruz Dckt. No. 141. p. 2:2-4. Before those issues could be addressed at the

18 Conference, Dollar Tree obtained permission to file the present Motion. As such, the lack of a trial

19 plan has nothing to do with a lack of trying on class counsel’s part.

20

21

22

23

24

25 47 Since the list of 48 tasks was Dollar Tree’s counsel’s invention, not class counsel’s, Defendant’s citations to statements by class counsel are misleading. Motion, p. 24:23-24. Class
26 counsel was contesting the fact that Plaintiffs did not accept a list that contained 48 tasks, and/or that every SM would describe their job identically. See also Motion, p. 24:25-26, but class counsel was
27 referring to the fact that complete passages from deposition testimony of one SM may not be reflective of how every other SM would describe the tasks s/he performed. Class counsel never said
28 that SMs do not all do the same tasks, only that the descriptors for those tasks might vary. See Cole Decl., ¶¶ 3, 4.
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SCOTT COLE & ASSOCIATES, APC
ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR
OAKLAND, CA 94612 TEL: (510) 891-9800

1

2.

The Trial Plan Outlined in the Class Certification Motion (and

Elsewhere) is Workable

2

3

Without trial manageability, the adjudication of common issues can be overwhelmed by the

4 adjudication of the individual ones, which is why a “preponderance” analysis is at the heart of Rule

5 23(b)(3). Here, efficiency will be promoted by a phased trial plan that adjudicates the answers to

6 several preliminary common questions,48 as well as the exempt/non-exempt nature of SMs’ already-

7 established work duties, followed by a survey of class members regarding the amount of time spent

8 on their work duties (as set forth in the Certification Form's task list, or a list closely resembling it).

9 Should liability be determined against Dollar Tree, any number of techniques for determining

10 damages could then be employed.49

11

Such an approach has been endorsed by the Sav-On court and other appellate and trial courts,

12 as well as by the experts retained for this litigation. To start with, the Sav-On Court explained that,

13 for decades the California Supreme Court “has urged trial courts to be procedurally innovative” in

14

15 48 This trial plan incorporates an initial adjudication that even Dollar Tree must admit is a worthwhile endeavor on a class-wide basis, namely, whether the company had a “realistic
16 expectation” that its SMs would be primarily performing exempt work. See Ramirez v. Yosemite Water Co., Inc., 20 Cal.4th 785 (1999) (discussing 50% “quantitative” test under California
17 exemption law, and explaining that the employer’s expectations concerning whether the class was primarily performing exempt work (so as to avoid liability) must be “realistic”). Here, since its
18 expectations would naturally have been communicated equally, through orientation, training, operational protocols and policies and procedures to its entire workforce, all questions about the
19 reasonableness thereof are also necessarily common trial issues. 49 Individual issues requiring that each class member individually establish his/her eligibility to
20 make a claim or his/her specific damages do not render class treatment inappropriate as long as these issues may be effectively managed. Blackie v. Barrack, 524 F.2d 891, 905 (9th Cir. 1975); Sav-On,
21 34 Cal.4th at 334-35; Employment Dev. Dept. v. Superior Court, 30 Cal.3d 256, 266 (1981), B.W.I. Custom Kitchen v. Owens-Illinois, Inc., 191 Cal.App.3d 1341, 1354 (1987) (the appropriate method
22 to determine class members’ damages “need not be resolved until the class-wide issues have been determined”). Moreover, individual damages can be determined through well-established and easily
23 managed procedures, including the use of questionnaires, surveys or representative sampling and testimony. See, e.g., Bell v. Farmers Ins. Exchange, 115 Cal.App.4th 715, 750 (2004) (approving use
24 of statistical sampling in a class action stating that it “does not dispense with proof of damages but rather offers a different method of proof”). Not only do individual issues regarding each class
25 member’s specific amount of damages not render class treatment inappropriate, the correct formula for determining wages due presents yet another class-wide issue for determination. Such formulaic
26 distributions of back pay have been found particularly useful where, as here, Defendant’s lack of adequate records would make any attempt at reconstructing the precise number of hours worked by
27 affected employees a cumbersome process. See, e.g., Stewart v. General Motors Corp., 542 F.2d 445, 452-53 (7th Cir. 1976); EEOC v. O & G Spring & Wire Forms Spec. Co., 38 F.3d 872, 876 (7th
28 Cir. 1994); Hilao v. Estate of Marcos, 103 F.3d 767, 782-87 (9th Cir. 1996); Domingo v. New England Fish Co., 727 F.2d 1429, 1444-45 (9th Cir. 1984); 4 Newberg § 9:63 at 451.
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SCOTT COLE & ASSOCIATES, APC
ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR
OAKLAND, CA 94612 TEL: (510) 891-9800

1 managing class actions, and “the trial court has an obligation to consider the use of ... innovative

2 procedural tools proposed by a party to certify a manageable class.” Sav-On, 34 Cal.4th at 339. Such

3 “innovative procedural tools” can take on many appearances and, obviously, a trial plan specifically

4 tailored toward the particular litigation has the best chance of achieving the desired effect. Here,

5 since the SM duties are already known, Plaintiffs propose a trial to adjudicate common questions

6 such as Dollar Tree’s expectations about what SMs should be doing (i.e., the “Ramirez” defense) and

7 which SM duties are legally exempt under California law. Plaintiffs request a trial by jury of those

8 issues, although, as Mr. Crandall observed, some of these questions may be handled through motion

9 practice. Also relevant for adjudication in this first phase are common questions such as (1) what

10 steps Defendant has taken to re-examine its blanket exemption classification (and whether those

11 steps absolve it of penalties under California Labor Code § 203), (2) whether Defendant violated

12 California Labor Code §§ 226.7 and/or 512 by failing to adopt a policy concerning meal and rest 13 breaks,50 (3) whether, as a matter of law, punitive damages are recoverable, (4) whether Dollar Tree

14 engaged in an unfair business practice under California Business & Professions Code § 17200, (5)

15 whether Dollar Tree failed to record and maintain SM hours of work in violation of California Labor

16 Code § 1174, and (6) what form of survey is proper to poll the class as to how their time is allocated.

17 Clearly, there are enormous efficiencies in answering, just once, common questions such as these.

18

Once the exempt/nonexempt nature of SMs duties is determined, and the Court determines

19 the proper trial tool to poll the class, Plaintiffs propose that all class members be surveyed to 20 determine how they allocated their work time between the enumerated work tasks.51 Obviously, the

21

22

50 Dollar Tree boldly claims that meal/rest claims are not certifiable and cites Brinker v. Superior Court, 165 Cal.App.4th 25 (2008) and Brinkley v. Public Storage, Inc., 84 Cal.Rptr.3d 873

23

(2008), review granted, 87 Cal.Rptr.3d 674 (Jan. 14, 2009). Notably, while these companion cases are currently on review by the California Supreme Court, no California court has categorically said

24

meal and rest claims are non-certifiable, including the lower court opinions in Brinker and Brinkley. Also notable is that the relevant pending appellate issue in Brinker/Brinkley is the extent to which

25

employers must govern the taking of employee meal periods (Dollar Tree also misstates the rest period standard which is merely to “authorize and permit” those breaks; see Cal. Lab. Code §226.7).

26

No party in Brinker/Brinkley ever contested that an employer must, at least, tell its employees they are entitled to meal and rest breaks and, since Dollar Tree failed to do even that, whatever decision

27

the Supreme Court may hand down regarding the meal period law’s definition of “provide” could have no impact on the instant case.

28 51

Individualized showings as to “eligibility for recovery” do not render class treatment

inappropriate. Sav-On, 34 Cal.4th at 333; see also Harper v. 24 Hour Fitness, Inc., 167 Cal.App.4th

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SCOTT COLE & ASSOCIATES, APC
ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR
OAKLAND, CA 94612 TEL: (510) 891-9800

1 results of Phase 1 would not be available to the class members being polled since that could bias

2 them as to how they report their time allocations. During this phase, one predictable issue will

3 require determination by the Court, namely, how to address those class members who fail to report

4 altogether. Whether the Court permits other evidence (e.g., the Certification Forms completed

5 thereby, expert testimony or the admission of other records) to supplant a direct response by an

6 otherwise non-responsive class member need not be addressed now and, indeed, may never be

7 addressed should Phase 1 not result favorably for Plaintiffs.

8

In any event, this phased approach allows for common issues to be resolved first; it also

9 accounts for any possible variations between SM experiences due to varying store sizes, sales

10 volume and the multitude of other factors cited in the Motion that make every human being unique, 11 in that the result of those variances52 is how they allocate their time (again, the principal purpose of 12 conducting Phase 2).53 In the end, if liability is found against Dollar Tree, the parties would progress

13 to a damages phase.

14

As explained by the California Supreme Court on facts very much like those here, “the fact is

15 the tasks discussed in both defendant’s and plaintiffs’ submissions comprise a reasonably definite

16 and finite list. ... This [issue of whether the work tasks are “exempt” or “nonexempt” can be] easily

17

18 966 (2008); Bufil, 162 Cal.App.4th at 1208; Bell, 115 Cal.App.4th at 744 (most class actions contemplate the eventual individual proof of damages, which impliedly entails the potential that

19 some class members will have none). As such, whether some SMs may, ultimately, be found exempt

20

is not relevant now, so long as manageability tools exist or can be designed with which to adjudicate that issue later.

21

52 Any variances in SMs’ work merely impact the amount of time spent on certain tasks, not the task list itself; Phase 2’s approach addresses these variances. See Day v. NLO, 851 F.Supp. 869, 876

22

(S.D. Ohio 1994) (explaining that such devices permit defendants to “present their opposition, and to raise certain affirmative defenses.”); Sav-On, 34 Cal.4th at 339-40. Moreover, even if it were

23

relevant to Plaintiffs’ trial plan, Defendant’s argument that class action trials, in general, cannot proceed through “representative” testimony is preposterous and its citation to cases such as Wells

24

Fargo are distinguishable in that the job duties of the “outside salespersons” in that case were not known as they are in the instant case. See § II.A.2., supra.

25 53

Phase 2 permits the reasons why SMs may spend more or less time on exempt work to merge

with their answers to the survey; in the end, whatever store circumstances (e.g., differing staff levels)

26 may have led them there, each SM will be permitted to identify, with particularity, whether s/he is

27

performing primarily exempt or nonexempt work, without the need for the extrapolation discussed in Mr. Crandall’s report. Again, however, this is just one possible trial approach. Class counsel has

28 consistently represented that the proper trial management approach should be discussed with the

Court and/or, to the extent possible, negotiated between counsel.

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SCOTT COLE & ASSOCIATES, APC
ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR
OAKLAND, CA 94612 TEL: (510) 891-9800

1 be resolved on a class-wide basis by assigning each task to one side of the ‘ledger’ and makes the 2 manageability of the case not the daunting task Defendant has sought to portray.” Sav-On, 34 Cal.4th 3 at 331. Particularly given Mr. Crandall’s concerns about extrapolating time allocation testimony 4 from a sample of SMs to the entire class population, the feasibility of such a model reveals that a 5 class-wide trial need not be the daunting task suggested by Dollar Tree.54 6

7

III.

CONCLUSION

8

Given agreement as to what tasks SMs perform, agreement that those tasks can be

9 adjudicated as to their exempt-ness on a class-wide basis, the irrefutable existence of numerous other

10 common questions, and the availability of a trial plan that resolves, for everyone at once, significant

11 common questions, while allowing for individual questions to be handled through the use of yet

12 another (and admittedly “valid” and “reliable”) common tool, decertifying this class makes no sense.

13 Since Dollar Tree has not made good on its promise to demonstrate changed circumstances, and

14 since the efficiencies of employing class action procedures in this case are overwhelming, Plaintiffs

15 respectfully request that this Court deny the Motion.

16

17 Dated: July 2, 2010

SCOTT COLE & ASSOCIATES, APC

18

19

By: /s/Scott Edward Cole

20

Scott Edward Cole, Esq.

Attorneys for the Representative Plaintiffs

21

and the Plaintiff Class

22

23

24 54 MAK Ex. 1 , pp. 69:4-13; 103:1-11; 154:9-155:1 (Mr. Crandall agrees that the Court could make class-wide finding as to the exempt-ness of the 17 tasks); see also MAK Ex. 3, ¶ 10; MAK Ex.
25 4, ¶ 17 (endorsing class-wide adjudication of Certification Form tasks and subsequent use of a survey to poll class members as to allocation of time between those tasks). Finally, the Court should
26 note that, to whatever extent the parties’ experts have not agreed on how best to determine liability questions (further noting that, again, Plaintiffs’ plan heretofore is merely one proposed approach),
27 such disputes need not be determined now. See, e.g., In re Visa Check/MasterMoney Antitrust Litig., 280 F.3d 124, 134-135 (2d Cir. 2001) (class certification is not the place to resolve disputes between
28 experts).

-27Plaintiffs’ Memo. of Points and Authorities in Opposition to Defendant's Mtn. to Decertify the Class

 
 Case3:07-cv-02050-SC Document232 Filed09/09/10 Page1 of 23

United States District Court
For the Northern District of California

1

2

3 UNITED STATES DISTRICT COURT
4 NORTHERN DISTRICT OF CALIFORNIA
5

6 MIGUEL A. CRUZ, and JOHN D. HANSEN,) Case Nos. 07-2050 SC

individually and on behalf of all )

07-4012 SC

7 others similarly situated,

)

)

8

Plaintiffs,

) ORDER GRANTING IN

) PART AND DENYING IN

9

v.

) PART DEFENDANT'S

) MOTION TO DECERTIFY

10 DOLLAR TREE STORES, INC.,

)

)

11

Defendant.

)

___________________________________)

12

)

ROBERT RUNNINGS, individually, and )

13 on behalf of all others similarly )

situated,

)

14

Plaintiffs,

)

)

15

v.

)

)

16 DOLLAR TREE STORES, INC.,

)

)

17

Defendant.

)

)

18

)

19 I. INTRODUCTION

20

This matter comes before the Court on the Motion to Decertify

21 filed by Defendant Dollar Tree Stores, Inc. ("Defendant" or

22 "Dollar Tree"). ECF No. 188.1 Plaintiffs Robert Runnings, Miguel

23 Cruz, and John Hansen (collectively "Plaintiffs") filed an

24 Opposition, and Defendant submitted a Reply. ECF Nos. 212, 218.

25 For the following reasons, the Court GRANTS IN PART and DENIES IN

26
1 Cruz v. Dollar Tree, Case No. 07-2050 ("Cruz Action"), and 27 Runnings v. Dollar Tree, Case No. 07-4012 ("Runnings Action"), have
been consolidated. Unless otherwise noted, all docket numbers in 28 this Order refer to docket entries in the Cruz Action.

Case3:07-cv-02050-SC Document232 Filed09/09/10 Page2 of 23

United States District Court
For the Northern District of California

1 PART the Motion to Decertify.

2

3 II. BACKGROUND

4

The Court assumes the parties are familiar with the

5 procedural and factual background of this dispute, which the Court

6 set out in its Order Granting the Amended Motion for Class

7 Certification. ECF No. 107 ("May 26, 2009 Order"). Plaintiffs

8 allege they were improperly classified as exempt employees. See

9 Runnings Action, ECF No. 1 ("Runnings Compl."); Cruz Action ECF

10 No. 23 ("Cruz Am. Compl."). As a result, Plaintiffs allege that

11 Dollar Tree failed to pay them overtime compensation and failed to

12 provide meal and rest breaks, in violation of California law. Id.

13 The class is currently defined as "[a]ll persons who were employed

14 by Dollar Tree Stores, Inc. as Calfornia retail Store Managers at

15 any time on or after December 12, 2004, and on or before May 26,

16 2009." ECF No. 113 ("July 2, 2009") at 5. Starting the class

17 period at December 12, 2004 ensures that any eventual awards to

18 Dollar Tree Store Managers ("SMs") will not overlap with the

19 awards that resulted from a previous settlement. See May 26, 2009

20 Order. The class consists of 718 SMs who worked in 273 retail

21 locations in California. Mot. at 1.

22

As explained in the order certifying the class, Dollar Tree

23 requires its SMs to certify that they spend more than fifty

24 percent of their actual work time each week performing the

25 following duties and responsibilities:

26

1. Supervision of associates.

2. Oversee daily store activities, including opening

27

and closing store.

28

2

Case3:07-cv-02050-SC Document232 Filed09/09/10 Page3 of 23

United States District Court
For the Northern District of California

1

3. Ensure customer and associate safety.

4. Protect all company assets, including store cash,

2

merchandise and equipment.

5. Maintain proper sales, banking, inventory,

3

accounting, productivity, payroll and time records.

6. Responsible for adequate staffing of store.

4

Recruit, interview, hire, employ, and train sales

associates. Train associates to properly use all

5

equipment and technology as well as provide

thorough merchandise display training.

6

7. Schedule and assign work to store personnel.

Evaluate, motivate, counsel, develop, discipline

7

and discharge sales associates appropriately.

Maintain production reports to evaluate job

8

performance of sales associates.

8. Provide leadership and direction to store

9

personnel.

9. Communicate company policies to sales associates.

10

Ensure associates comply with company policies and

procedures, including safety guidelines and human

11

resources policies.

10. Analyze sales, expenses, and profit, review

12

reports, analyze competition, determine customer

preferences, manage sales forecasting, meet sales

13

and profit objectives and goals, determine product

mix, determine most effective placement of product

14

and ensure standards for merchandise presentation,

displays and signage to maximize sales. Assist in

15

developing promotions and advertisements as

appropriate.

16

11. Control inventory. Supervise ordering, receiving,

stocking and pricing of goods. Ensure goods are

17

properly marked and mark downs are properly

recorded.

18

12. Responsible for overall cleanliness and appearance

of store.

19

13. Ensure highest level of customer service. Handle

customer complaints and problems.

20

14. Ensure accident reports and damage reports are

completed in timely and accurate manner.

21

15. Complete management reports in a timely and

accurate manner.

22

16. Ensure compliance with applicable laws and

regulations.

23

17. Communicate professionally and effectively with

customers, subordinates and supervisors.

24

25

26

27

28

3

Case3:07-cv-02050-SC Document232 Filed09/09/10 Page4 of 23

United States District Court
For the Northern District of California

1 Kuehn Decl. Ex. 2 ("Weekly Payroll Certification").2 The

2 certification form states that SMs "may not spend more than a

3 total of 35% of his/her actual work time each week receiving

4 product, distributing and storing product, stocking product and

5 cashiering." Id. A SM must certify "yes" if he or she spent the

6 majority of his or her time performing the seventeen duties, and

7 "no" if he or she did not. See id. If the SM responds no, "s/he

8 must immediately provide an explanation to both Payroll and Human

9 Resources. No salary or wage will be withheld because of non-

10 compliance." Id. The form provides a space for SMs to write in

11 their explanation. See id.

12

Dollar Tree's expert, Robert Crandall, MBA ("Crandall"),

13 analyzed certification responses comprising 29,431 workweeks

14 during the class period. ECF No. 190 ("Crandall Decl.") ¶ 15.

15 His analysis show that approximately 62 percent of SMs always

16 certified that they spent the majority of their workweeks on the

17 seventeen managerial tasks, 2.5 percent reported that they never

18 spent most of their time performing these tasks, and about 35

19 percent of SMs fall somewhere in between.3 Id. ¶¶ 22-23, Ex. 2

20
2 Molly A. Kuehn, attorney for Plaintiffs, filed a Declaration 21 in Support of Plaintiffs' Opposition to Defendant's Motion to
Decertify the Class. ECF No. 214. 22
3 Plaintiffs filed evidentiary objections to statements in 23 Crandall's declaration. ECF No. 213. The Court notes that
Crandall tends to treat the terms "managerial" and "exempt" as 24 synonymous, when in fact there has been no determination yet as to
whether SMs who spend a majority of their time performing the 25 seventeen tasks listed on the weekly payroll certifications are
properly classified as exempt. The Court does not rely on any 26 statement by Crandall that SMs engaged in exempt tasks. Plaintiffs
also object that these statements go to liability issues rather 27 than class certification issues, but as explained below, see Part

28

4

Case3:07-cv-02050-SC Document232 Filed09/09/10 Page5 of 23

United States District Court
For the Northern District of California

1 ("Summary of Managers' Weekly Responses"). As explained in Part

2 IV(E), infra, the Court regards the weekly payroll certifications

3 as a reliable source of information concerning how SMs were

4 spending their time at Dollar Tree.

5

6 III. LEGAL STANDARD

7

The district court has discretion to certify a class under

8 Federal Rule of Civil Procedure 23. Dukes v. Wal-Mart Stores,

9 Inc., 603 F.3d 571, 579 (9th Cir. 2010). Rule 23(a) requires that

10 the plaintiff demonstrate (1) numerosity, (2) commonality, (3)

11 typicality, and (4) fair and adequate representation of the class

12 interest. Fed. R. Civ. P. 23(a). In addition to meeting

13 these requirements, the plaintiff must also show that the lawsuit

14 qualifies for class action status under one of the three criteria

15 found in Rule 23(b). See Dukes, 603 F.3d at 592-93. Here, the

16 Court previously ruled that Plaintiff had satisfied Rule 23(a) and

17 certified the class under Rule 23(b)(3), which requires that

18 "questions of law or fact common to the members of the class

19 predominate over any questions affecting only individual members,

20 and that a class action is superior to other available methods for

21 the fair and efficient adjudication of the controversy." Fed. R.

22 Civ. P. 23(b)(3).

23

A previously certified class is subject to modification at

24 the Court's discretion. See General Tel. Co. of the Southwest v.

25 Falcon, 457 U.S. 147, 160 (1982) (noting that even after a class

26 IV.D, the two sets of issues cannot be kept entirely separate.
27 The Court OVERRULES Plaintiffs' objections.

28

5

Case3:07-cv-02050-SC Document232 Filed09/09/10 Page6 of 23

United States District Court
For the Northern District of California

1 is certified, the district court "remains free to modify it in the

2 light of subsequent developments in the litigation."); Fed. R.

3 Civ. P. 23(c)(1)(C) ("An order that grants or denies class

4 certification may be altered or amended before final judgment.");

5 Officers for Justice v. Civil Service Comm'n of City and County of

6 San Francisco, 688 F.2d 615, 633 (9th Cir. 1982) ("before entry of

7 final judgment on the merits, a district court's order respecting

8 class status is not final or irrevocable, but rather, it is

9 inherently tentative"); see also Marlo v. United Parcel Service,

10 Inc., 251 F.R.D. 476, 488 (C.D. Cal. 2008) (decertifying class

11 after subsequent discovery, motion practice, and trial

12 preparations revealed that requirement of predominance of common

13 issues was not satisfied). The standard applied by the courts in

14 reviewing a motion to decertify is the same as the standard used

15 in evaluating a motion to certify; namely, whether the

16 requirements of Rule 23 are met. O'Connor v. Boeing N. Am., Inc.,

17 197 F.R.D. 404, 410 (C.D. Cal. 2000).

18

19 IV. DISCUSSION

20

The central issue in this case is whether Dollar Tree

21 misclassified its SMs as exempt. Dollar Tree contends the class

22 should be decertified based on changes in the law since class

23 certification and based on its continued development of facts

24 showing that individual issues predominate over common issues.

25 The Court begins by reviewing some of the applicable statutes,

26 regulations, and cases.

27 ///

28

6

Case3:07-cv-02050-SC Document232 Filed09/09/10 Page7 of 23

United States District Court
For the Northern District of California

1

A. Overtime Pay and the Executive Exemption

2

Section 510(a) of the California Labor Code provides that

3 "[a]ny work in excess of eight hours in one workday and any work

4 in excess of 40 hours in any one workweek and the first eight

5 hours worked on the seventh day of work in any one workweek shall

6 be compensated at the rate of no less than one and one-half times

7 the regular rate of pay for an employee." Cal. Lab. Code

8 § 510(a). Title 8, Section 11040 of the California Code of

9 Regulations prohibits employees from working more than eight hours

10 per workday or forty hours per workweek unless they are paid

11 overtime for all extra hours worked. Cal. Code Regs. tit. 8, §

12 11040(3)(A)(1).

13

Under California law, this requirement to pay overtime

14 compensation does not apply to "exempt" employees. See Cal. Lab.

15 Code § 515; Cal. Code Regs. tit. 8 § 11040. The executive

16 exemption is set forth in Industrial Welfare Commission Wage

17 ("ICW") Order 7-2001, Cal. Code Regs., tit. 8, § 11070. To

18 qualify as exempt, the employee must: (1) manage the enterprise, a

19 customarily recognized department, or subdivision thereof; (2)

20 direct the work of two or more other employees; (3) have the

21 authority to hire or fire, or have their recommendations to hire,

22 fire, or promote given weight; (4) exercise discretion and

23 independent judgment; (5) be primarily engaged in exempt activity

24 more than fifty percent of the time; and (6) earn a monthly salary

25 equal to twice the state minimum wage for full-time employment.

26 Cal. Code Regs. tit. 8, § 11070(1)(A)(1)(a)-(f).

27

"[T]he assertion of an exemption from the overtime laws is

28

7

Case3:07-cv-02050-SC Document232 Filed09/09/10 Page8 of 23

United States District Court
For the Northern District of California

1 considered to be an affirmative defense, and therefore the

2 employer bears the burden of proving the employee's exemption."

3 Ramirez v. Yosemite Water Co., 20 Cal. 4th 785, 794-95 (1999).

4 The employer must establish that it realistically expected

5 managers to spend at least half their time on exempt tasks. Id.

6 at 802. In Ramirez, the court rejected the notion that an

7 employee's exempt status could be determined solely by looking to

8 the employer's job description or by examining the employee's

9 actual activities. Id. at 802. The Court explained:

10

On the one hand, if hours worked on [an exempt

activity] were determined through an employer's

11

job description, then the employer could make an

employee exempt from overtime laws solely by

12

fashioning an idealized job description that had

little basis in reality. On the other hand, an

13

employee who is supposed to be engaged in [an

exempt activity] during most of his working

14

hours and falls below the 50 percent mark due to

his own substandard performance should not

15

thereby be able to evade a valid exemption.

16 Id. In assessing the propriety of an exemption, the trial court

17 "must steer clear of these two pitfalls by inquiring into the

18 realistic requirements of the job." Id. In making that

19 determination,

20

the court should consider, first and foremost,

how the employee actually spends his or her

21

time. But the trial court should also consider

whether the employee's practice diverges from

22

the employer's realistic expectations, whether

there was any concrete expression of employer

23

displeasure over an employee's substandard

performance, and whether these expressions were

24

themselves realistic given the actual

requirements of the job.

25

26 Id.

27 ///

28

8

Case3:07-cv-02050-SC Document232 Filed09/09/10 Page9 of 23

United States District Court
For the Northern District of California

1

B. Ninth Circuit Decisions in Vinole and Wells Fargo

2

Subsequent to this Court's certification order, the Ninth

3 Circuit issued two opinions clarifying how a district court's

4 certification analysis should proceed in cases where an employer

5 asserts an exemption. In Vinole v. Countrywide Home Loans, Inc.,

6 the Ninth Circuit held that relying on a uniform exemption policy

7 to the near exclusion of other factors is insufficient to meet the

8 predominance requirement of Rule 23(b)(3). 571 F.3d 935, 946 (9th

9 Cir. 2009). The district court must consider "all factors that

10 militate in favor of, or against, class certification," and the

11 overarching focus remains "whether trial by class representation

12 would further the goals of efficiency and judicial economy." Id.

13

In Vinole, the Ninth Circuit discussed the types of common

14 proof that could suffice to establish the predominance of common

15 issues. While an employer's "uniform application of an exemption

16 to employees" is one factor, district courts should also consider

17 "whether the employer exercised some level of centralized control

18 in the form of standardized hierarchy, standardized corporate

19 policies and procedures governing employees, uniform training

20 programs, and other factors susceptible to common proof." Id.

21 The Ninth Circuit cited the existence of "company-wide policies

22 governing how employees spend their time, or [] uniformity in work

23 duties and experiences" as the type of proof that tends to

24 "diminish the need for individualized inquiry." Id. at 947. In

25 contrast, "in cases where exempt status depends upon an

26 individualized determination of an employee's work, and where

27 plaintiffs allege no standard policy governing how employees spend

28

9

Case3:07-cv-02050-SC Document232 Filed09/09/10 Page10 of 23

United States District Court
For the Northern District of California

1 their time, common issues of law and fact may not predominate."

2 Id. at 946-47 (citation and quotation marks omitted).

3

On the same day, the Ninth Circuit also issued its decision

4 in In re Wells Fargo Home Mortgage Overtime Pay Litigation, 571

5 F.3d 953 (9th Cir. 2009)("Wells Fargo I"). This case provides

6 further guidance on how the Court should conduct its certification

7 analysis. The Ninth Circuit expressly rejected the rule followed

8 in Wang v. Chinese Daily News, 241 F.R.D. 601 (C.D. Cal. 2005),

9 which "essentially creates a presumption that class certification

10 is proper when an employer's internal exemption policies are

11 applied uniformly to the employees." Wells Fargo I, 571 F.3d at

12 958. The Court noted that a "blanket exemption policy does

13 nothing to facilitate common proof on the otherwise individualized

14 issues." Id. In the context of discussing the outside

15 salesperson exemption, the Ninth Circuit noted that the exemption

16 often militates against certification because it requires a fact-

17 intensive inquiry into each potential plaintiff's employment

18 situation. Id. On the other hand,

19

A centralized policy requiring employees to be

at their desks for 80% of their workday would

20

change this individual issue into a common

one. Therefore, such a corporate policy would

21

be highly relevant to the predominance

analysis. A uniform exemption policy,

22

however, has no such transformative power.

Whether such a policy is in place or not,

23

courts must still ask where the individual

employees actually spent their time.

24

25 Id. at 959. The main concern in the predominance inquiry is "the

26 balance between individual and common issues." Id.

27 ///

28

10

Case3:07-cv-02050-SC Document232 Filed09/09/10 Page11 of 23

United States District Court
For the Northern District of California

1

C. District Court Reactions to Vinole and Wells Fargo I

2

On remand in the Wells Fargo case, Judge Patel in the

3 Northern District of California decertified the class, noting that

4 "when an employer asserts an exemption as a defense . . . the

5 resolution of which depends on how employees spend their time at

6 work, unless plaintiff proposes some form of common proof, such as

7 a standard policy governing how and where employees perform their

8 jobs, common issues of law or fact are unlikely to predominate."

9 In re Wells Fargo Home Mortg. Overtime Pay Litig., No. 06-1770,

10 2010 WL 174329, *7 (N.D. Cal. Jan. 13, 2010)("Wells Fargo II").

11 She decertified the case because Plaintiffs could not come forward

12 with "common proof that would absolve this court from inquiring

13 into how each [manager] spent their working day." Id.

14

Similarly, after the Ninth Circuit's decisions in Vinole and

15 Well Fargo I, Judge Armstrong in the Northern District of

16 California decertified a case where managers alleged they had been

17 misclassified as executive-exempt employees. Whiteway v. FedEx

18 Kinkos Office and Print Servs., Inc., No. 05-2320 (N.D. Cal. Sept.

19 29, 2009). The order stated:

20

The Court is no longer persuaded that common

questions of fact or law will predominate over

21

questions affecting individual class members.

Though Plaintiff alleges that Defendant has a

22

policy of classifying Center Managers as

exempt, he has not pointed to any policy or

23

common practice demonstrating that these

employees as a class are required or expected

24

to allocate the majority of their time to non-

exempt tasks.

25

26 Id. at 5.

27

In Weigele v. FedEx Ground Package System, Inc., the District

28

11

Case3:07-cv-02050-SC Document232 Filed09/09/10 Page12 of 23

United States District Court
For the Northern District of California

1 Court decertified a case where FedEx managers alleged they were

2 improperly classified as exempt. 267 F.R.D. 614, 622 (S.D. Cal.

3 2010). The court found that common issues did not predominate

4 because of the "massive number of tasks" performed by Dock Service

5 Managers and the variability in the amount of time they spent on

6 these tasks, and the Court noted that FedEx's common processes and

7 training "would provide no help to the Court in determining the

8 actual work mix performed by the Plaintiffs." Id.

9

D. Modifying the Class Definition

10

Dollar Tree contends that these recent developments compel

11 decertification. See Mot. at 5-7. Plaintiffs contend there is no

12 need for the Court to re-examine its previous order certifying the

13 class. Opp'n at 6-7. The Court agrees partially with Dollar Tree

14 and partially with Plaintiffs.

15

In this case, unlike in Wells Fargo II, Whiteway, and

16 Weigele, Plaintiffs have common proof of how SMs were actually

17 spending their time. Plaintiffs can rely on the certification

18 forms that SMs signed every week to, in the words of the Ninth

19 Circuit, transform what would otherwise be an individual issue

20 into a common one. See Wells Fargo I, 571 F.3d at 959. However,

21 the Ninth Circuit's reasoning in Vinole and Wells Fargo I

22 persuades the Court of the need to narrow the class definition to

23 include only SMs who responded "no" on their certification forms

24 during the class period. Narrowing the class in this way ensures

25 that common issues will predominate over individual ones, and

26 significantly lessens the risk that the class consists of both

27 injured and uninjured parties.

28

12

Case3:07-cv-02050-SC Document232 Filed09/09/10 Page13 of 23

United States District Court
For the Northern District of California

1

In this case, Plaintiffs "must show that it is more likely

2 than not that [Dollar Tree's] exemption as applied to [SMs] was a

3 policy or practice of misclassification." Marlo, 251 F.R.D. at

4 483. In order to make this showing, Plaintiffs can point to

5 common evidence including Dollar Tree's decision to uniformly

6 classify SMs as exempt, Dollar Tree's employment hierarchy and

7 structure, its standardized policies and training procedures for

8 SMs, the common tools it requires SMs to utilize, and, most

9 importantly of all, the fact that SMs often certified on a weekly

10 basis that they were not spending most of their time on managerial

11 tasks. Dollar Tree's common policy of having SMs fill out weekly

12 certifications obviates the need for much individual testimony

13 from SMs concerning how they spent their time.

14

The Court is persuaded that common issues will predominate

15 over individual ones only if it narrows the class to SMs who

16 responded "no" at least once on the weekly payroll certification

17 forms. According to Dollar Tree's analysis of certification forms

18 comprising 29,431 workweeks, approximately 62 percent of SMs

19 always certified that they spent a majority of their time

20 performing managerial tasks. Crandall Decl. ¶¶ 15, 22-23. If the

21 class were to continue to include SMs who always certified "yes,"

22 then Plaintiffs would be required to show that these SMs were not

23 always being truthful, and this issue could not be resolved

24 without resorting to individualized inquiries that would quickly

25 overwhelm the common issues in this case.

26

No such individualized inquiries are necessary if the Court

27 focuses its attention on SMs who certified "no." Dollar Tree

28

13

Case3:07-cv-02050-SC Document232 Filed09/09/10 Page14 of 23

United States District Court
For the Northern District of California

1 classified this group of employees as exempt, yet they certified

2 at least once that they were spending most of their time during

3 particular workweeks performing non-managerial tasks. With regard

4 to this group of employees, Plaintiffs can use the weekly payroll

5 certifications and the other evidence of Dollar Tree's

6 standardized practices and procedures in their attempt to convince

7 the jury that "misclassification was the rule rather than the

8 exception" at Dollar Tree. See Sav-On Drugs Stores, Inc. v.

9 Super. Ct., 34 Cal. 4th 319, 330 (2004).

10

Plaintiffs may object that by narrowing the class to SMs who

11 responded "no," the Court is weighing the merits of Plaintiffs'

12 underlying claims. Indeed, Plaintiffs' Opposition repeatedly

13 suggests that merits-based or liability issues can be neatly

14 separated for questions relating to class certification. See

15 Opp'n. However, according to the Ninth Circuit, "[t]he district

16 court may consider the merits of the claims to the extent that it

17 is related to the Rule 23 analysis." Vinole, 571 F.3d at 947 n.

18 15 (citing Hanon v. Dataproducts Corp., 976 F.2d 497, 509 (9th

19 Cir. 1992); Moore v. Hughes Helicopters, Inc., 708 F.2d 475, 480

20 (9th Cir. 1983)); see also Dukes, 603 F.3d at 590 ("A district

21 court must sometimes resolve factual issues related to the merits

22 to properly satisfy itself that Rule 23's requirements are met. .

23 . ."). As stated by the Third Circuit,

24

Because the nature of the evidence that will

suffice to resolve a question determines

25

whether the question is common or individual,

a district court must formulate some

26

prediction as to how specific issues will play

out in order to determine whether common or

27

individual issues predominate in a given case.

28

14

Case3:07-cv-02050-SC Document232 Filed09/09/10 Page15 of 23

United States District Court
For the Northern District of California

1 In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 311 (3d

2 Cir. 2008) (citations and internal quotation marks omitted).

3

Here, the Court expresses no opinion on the merits of

4 Plaintiffs' claims. The Court simply seeks to fulfil its

5 obligation to ensure that common issues predominate. The SMs who

6 responded "no" on the certification forms are the ones whose

7 grievance against Dollar Tree can be adjudicated on a class-wide

8 basis. Plaintiffs' counsel would not be able to advocate in this

9 case on behalf of those who always responded "yes" without

10 resorting to individualized testimony to explain why they filled

11 out the weekly certification forms inaccurately. This testimony

12 from individual SMs would overwhelm the common issues.

13

Narrowing the class to include only SMs who certified "no"

14 avoids a second problem. Courts have expressed concern about

15 overbroad classes that include both injured and uninjured parties.

16 See Wells Fargo II, 2010 WL 174329 at *8; see also In re Neurontin

17 Mktg. and Sale Practices Litig., 244 F.R.D. 89, 114 (D. Mass.

18 2007) (finding plaintiff's inability to propose method for

19 separating injured from uninjured precluded class certification).

20 Here, one clear group of potentially injured parties are SMs who

21 certified that they were not spending the majority of their time

22 on managerial tasks, and therefore the Court narrows the class

23 definition accordingly.

24

Nonetheless, the Court recognizes that some SMs may have

25 always certified "yes" even though they were not spending most of

26 their time on managerial tasks. The Court does not want to

27 preclude these SMs from pursuing their misclassification claims on

28

15

Case3:07-cv-02050-SC Document232 Filed09/09/10 Page16 of 23

United States District Court
For the Northern District of California

1 an individual basis. The Court is willing to entertain a motion

2 to equitably toll the statute of limitations on their

3 misclassification claims so as to preserve their right to pursue

4 individual claims against Dollar Tree. See Marlo, 251 F.R.D. at

5 476, 488 (after decertification of case, inviting parties to brief

6 question of whether statute of limitations on plaintiff's

7 individual claims should be tolled).

8

E. The Weekly Payroll Certifications

9

In their Opposition, Plaintiffs seek to rely on the weekly

10 payroll certifications to show homogenity among SMs. See Opp'n at

11 5 ("it is each SM's statement that s/he, in fact, performs the

12 same job, every week, as every other, SM"). But Plaintiffs eschew

13 reliance on the weekly payroll certifications when it comes to

14 determining liability, presumably because most SMs respond "yes"

15 on the forms. Instead, Plaintiffs propose that Dollar Tree's

16 liability should be determined based on "a survey of class members

17 regarding the amount of time spent on their work duties." Id.

18 However, the Court sees no need for such a survey because the

19 weekly payroll certifications already provide a week-by-week

20 measure of how SMs were spending their time.

21

The Court anticipates that Plaintiffs may be concerned that

22 SMs who responded "no" may have been spending more weeks

23 performing non-managerial tasks than is indicated by their weekly

24 certifications. In response, the Court notes that if this case

25 proceeds to trial, the Court is likely to divide the trial into a

26 liability and damages phase. If there is a finding of liability,

27 then the Court is likely to appoint a special master to handle the

28

16

Case3:07-cv-02050-SC Document232 Filed09/09/10 Page17 of 23

United States District Court
For the Northern District of California

1 particular damages claims of class members. While the weekly

2 payroll certifications provide one measure of how many weeks

3 individual SMs spent the majority of their time engaged in non-

4 managerial tasks, there may be more scope for individual testimony

5 from class members at the damages phase of the litigation. The

6 Court does note, however, that having relied on the weekly payroll

7 certifications to get this case certified, it may be difficult for

8 Plaintiffs to challenge the overall accuracy of those

9 certifications at later stages of this case.

10

The certifications can be regarded as a source of common

11 proof because Dollar Tree's expert declares that they provide

12 valid measures of weeks when SMs were not spending more than fifty

13 percent of their time performing managerial duties. Crandall

14 Decl. ¶ 16; see also ECF No. 191 ("Rebuttal Decl. of Crandall") ¶

15 2 ("the weekly Certification Forms produce valid measures of

16 potentially non-exempt weeks"). Crandall supports this opinion by

17 pointing to statistically significant relationships between SM

18 responses and operational factors that were occurring in the store

19 during the week in question. Crandall Decl. ¶ 16. While Dollar

20 Tree points to the testimony of ten SMs who stated that they were

21 not truthful when they submitted their certifications, Mot. at 10-

22 11, the analysis performed by Dollar Tree's own expert indicates

23 that overall the certifications can be treated as a reliable

24 source of information concerning how SMs spent their time.

25

Crandall compares certification responses with fixed store-

26 level attributes, such as the number of full-time employees and

27 the level of customer flow per associate. Id. ¶ 36. Crandall

28

17

Case3:07-cv-02050-SC Document232 Filed09/09/10 Page18 of 23

United States District Court
For the Northern District of California

1 finds that managers with a higher percentage of full-time

2 employees are less likely to certify "no." Id. ¶ 38. According

3 to Crandall, this finding makes sense, as SMs with experienced

4 employees would be able to devote more of their time to managerial

5 tasks. Id.

6

Crandall finds that SMs who oversaw stores with high volume

7 sales and high customer flow per associate were more likely to

8 report that they spent a majority of their time on non-managerial

9 tasks. Id. ¶ 40. Crandall attributes this statistically

10 significant relationship to the fact that SMs in such stores "may

11 have a tendency to compensate by assisting with certain non-

12 managerial functions." Id. ¶ 39. Overall, these fixed store-

13 level attributes "exhibit clear statistical relationships with

14 SMs' responses provided on the Certification Forms." Id. ¶ 41.

15

Crandall also compares changes in SMs' weekly certification

16 reports to store-level attributes that varied from week to week.

17 Id. ¶ 35. Crandall finds that SMs were more likely to certify

18 "no" during weeks when they were understaffed, during weeks with

19 below-average staff hours, and during weeks when a store lost an

20 employee. Id. ¶¶ 43, 44. Again, it makes sense to the Court that

21 SMs may have spent more time on non-managerial tasks, such as

22 "receiving product, distributing and storing product, stocking

23 product and cashiering" during such workweeks. Based on these

24 comparisons, Crandall concludes that "the certifications have a

25 strong tendency to reflect actual in-store conditions and are

26 likely to accurately represent the activities performed by each

27 manager during the week." Id. ¶ 35.

28

18

Case3:07-cv-02050-SC Document232 Filed09/09/10 Page19 of 23

United States District Court
For the Northern District of California

1

Plaintiffs' expert, David Lewin, Ph.D. ("Lewin"), contends

2 that "the Certification Forms do not provide any information about

3 the work activities that SMs performed or the amount of time they

4 spent performing such activities." Vandall Decl. Ex. JJ ("Lewin

5 Resp. to Crandall Decl.") ¶ 10.4 While the weekly payroll

6 certifications do not provided a detailed, task-by-task breakdown

7 of the amount of time that SMs were spending performing specific

8 activities, they do provide the Court with the kind of information

9 it needs to allow this case to continue as a class action; namely,

10 information concerning weeks during which SMs were not spending

11 most of the time performing managerial tasks.

12

Lewin also faults Crandall for failing to provide "sufficient

13 statistical evidence for the correlations between SMs'

14 Certification Form responses and manager-specific/store-specific

15 relationships." Id. ¶ 10. He points out that Crandall failed to

16 conduct "either multivariate (regression) analysis or correlation

17 analysis of these relationships." Id. However, Plaintiffs'

18 expert appears to have conducted no studies of his own related to

19 the weekly payroll certifications.

20

The Court finds that Crandall's evidence of statistically

21 significant relationships is sufficient to determine that the

22 certifications are reliable overall, and that they can be relied

23 upon to provide what was missing in cases like Wells Fargo II,

24 Whiteway, and Weigele; namely, evidence of how managers were

25

26

4 Matthew P. Vandall ("Vandall"), attorney for Defendant,

filed a Declaration in Support of Defendant's Motion to Decertify. 27 ECF No. 189.

28

19

Case3:07-cv-02050-SC Document232 Filed09/09/10 Page20 of 23

United States District Court
For the Northern District of California

1 spending their time and therefore a source of common proof that

2 transforms what would otherwise be an individual issue into a

3 common one. The Court is not bound by these determinations as the

4 litigation progresses. See Dukes, 603 F.3d at 594. If persuaded

5 by the parties to do so, the Court can revise its determination

6 concerning the overall reliability of the certifications.

7 However, if Plaintiffs intend to argue that the certifications do

8 not provide a reliable measure of weeks when SMs were not spending

9 most of their time performing managerial tasks, then it is not

10 clear to the Court how this case can proceed as a class action.

11

The Court does not rely exclusively on these certifications

12 to determine that this case can continue to be adjudicated on a

13 class-wide basis. Plaintiffs also intend to rely on Dollar Tree's

14 "common training, common directives (e.g. policies, procedures,

15 merchandising 'plan-o-grams'), common job duties, common

16 expectations, and a common evaluation process" to establish that

17 SMs were misclassified as exempt. See Opp'n at 2. Plaintiffs

18 intend to show the "one size fits all" nature of the SM job based

19 on the "tasks SMs perform, the resources they use, the environment

20 within which they work, and the directives received from Dollar

21 Tree's corporate office." Opp'n at 14 n.14. Based on the

22 standardized nature of the SM position, Plaintiffs intend to argue

23 that SMs should not have been classified as managers, a position

24 that should be reserved for employees who exercise discretion and

25 independent judgment. Whether employees who spent a majority of

26 their time performing the seventeen tasks on the weekly payroll

27 certifications were engaged in exempt work is also a question that

28

20

Case3:07-cv-02050-SC Document232 Filed09/09/10 Page21 of 23

United States District Court
For the Northern District of California

1 can be answered on a class-wide basis.5

2

Dollar Tree points to evidence of variability in the

3 experiences of SMs based on such factors as store size, management

4 style of District Managers, SM training, and management tools.

5 Mot. at 11-18. Dollar Tree also contends that SMs had varying

6 approaches to ordering and displaying merchandise and that they

7 had varying experiences with human resources functions, such as

8 their duty to hire and fire. Mot. at 18-21. Even though the

9 Court has relied on Crandall's analysis to support the overall

10 accuracy of the weekly payroll certifications, the Court also

11 notes Crandall's finding of wide variability in SMs' experiences.

12 See Crandall Decl.

13

Defendants can rely on this evidence to contest Plaintiffs'

14 contention that SMs at Dollar Tree occupied a "one size fits all"

15 position, and to support the company's contention that it

16

17

5 The Court expresses no opinion on whether this last question

can be answered in motion practice or only at trial. In Sav-On 18 Drug Stores, the California Supreme Court stated that "task

classification is a mixed question of law and fact." 34 Cal. 4th 19 at 330. The Court also is not opposed, in principle, to the

parties' use of representative testimony. While Judge Patel 20 questioned the use of such testimony in a case dealing with the

outside salesperson exemption, see Wells Fargo II, 2010 WL 174329, 21 at *8, in such cases employees act without supervision and with

unfettered autonomy, which is precisely why representative 22 testimony concerning where and how such employees were spending

their time is problematic. Here, the Court is not dealing with the 23 outside salesperson exemption. Plaintiffs contend that Dollar Tree

SMs had little discretion and followed standardized company-wide 24 directives, and representative testimony seems appropriate as part

of Plaintiffs' case-in-chief. Defendant, of course, can attempt to 25 counter the suggestion that Dollar Tree SMs exercised little or no

discretion with SM testimony of its own. If this case goes to 26 trial, however, the Court does not anticipate allowing each side to

call more than a handful of SMs as witnesses as part of the 27 liability phase of the trial.

28

21

Case3:07-cv-02050-SC Document232 Filed09/09/10 Page22 of 23

United States District Court
For the Northern District of California

1 realistically expected SMs to spend most of their time performing

2 exempt work. In short, Dollar Tree's evidence of variability is

3 not a reason to decertify the class in its entirety, but it is

4 evidence that Dollar Tree can use to defend its classification of

5 SMs as exempt in later stages of these proceedings or at trial.

6 ///

7 ///

8 ///

9 ///

10 ///

11 ///

12 ///

13 ///

14 ///

15 ///

16 ///

17 ///

18 ///

19 ///

20 ///

21 ///

22 ///

23 ///

24 ///

25 ///

26 ///

27 ///

28

22

Case3:07-cv-02050-SC Document232 Filed09/09/10 Page23 of 23

United States District Court
For the Northern District of California

1 V. CONCLUSION

2

For the reasons stated above, the Court GRANTS IN PART and

3 DENIES IN PART the Motion to Decertify filed by Dollar Tree

4 Stores, Inc. The Court redefines the class as: All persons who

5 were employed by Dollar Tree Stores, Inc. as California retail

6 Store Managers at any time on or after December 12, 2004, and on

7 or before May 26, 2009, and who responded "no" at least once on

8 Dollar Tree's weekly payroll certifications.

9

In light of this new definition of the class, it is not clear

10 to the Court if Robert Runnings, Miguel Cruz, and John Hansen can

11 continue as Class Representatives. The Court invites Class

12 Counsel to file a motion to equitably toll the statute of

13 limitations on the misclassification claims of current or former

14 Dollar Tree Store Managers who are no longer part of the class to

15 preserve their right to pursue individual claims against Dollar

16 Tree. The Court encourages the parties to resolve this issue by

17 stipulation.

18

19

IT IS SO ORDERED.

20

21

Dated: September 9, 2010

22 UNITED STATES DISTRICT JUDGE
23

24

25

26

27

28

23

 
 Case3:07-cv-02050-SC Document254 Filed11/19/10 Page1 of 4

United States District Court
For the Northern District of California

1

2

3

4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6

MIGUEL A. CRUZ, and JOHN D. HANSEN,) Case Nos. 07-2050 SC

7 individually and on behalf of all )

07-4012 SC

others similarly situated,

)

8

)

Plaintiffs,

) ORDER RE: MOTIONS

9

)

v.

)

10

)

DOLLAR TREE STORES, INC.,

)

11

)

Defendant.

)

12 ___________________________________)

)

13 ROBERT RUNNINGS, individually, and )

on behalf of all others similarly )

14 situated,

)

Plaintiffs,

)

15

)

v.

)

16

)

DOLLAR TREE STORES, INC.,

)

17

)

Defendant.

)

18

)

19

Defendant Dollar Tree Stores, Inc. ("Dollar Tree" or

20 "Defendant") filed nine motions that are on the Court's November

21 19, 2010 calendar. Runnings Docket, ECF Nos. 272, 284, 286, 288,

22 290, 292, 295, 300, 304. Having considered all the papers

23 submitted in support of, and in opposition to, the motions, the

24 Court denies all nine motions.

25

1. The Court denies Defendant's Motion for Summary

26 Adjudication of Class Issues and Claims, and Alternative Motion to

27 Decertify the Class. The main issue in this case is whether 273

28 Dollar Tree store managers who responded "no" at least once on

Case3:07-cv-02050-SC Document254 Filed11/19/10 Page2 of 4

United States District Court
For the Northern District of California

1 Dollar Tree's weekly payroll certifications were mis-classified by

2 Dollar Tree as exempt from overtime compensation. To qualify for

3 the executive exemption, an employee must (1) manage the

4 enterprise or a subdivision; (2) direct the work of others; (3)

5 have the authority to hire or fire; (4) exercise discretion and

6 independent judgment; (5) be primarily engaged in exempt activity

7 more than half the time; and (6) earn a salary equal to twice the

8 minimum wage. While the parties agree that Dollar Tree store

9 managers earn a salary equal to twice the minimum wage, the Court

10 finds that there are material issues of fact as to whether the

11 other prongs of the executive exemption test are satisfied. Also,

12 the Court denies Dollar Tree's alternative motion to decertify

13 because Dollar Tree's defenses and realistic expectations

14 concerning how store managers were spending their time are likely

15 to prove susceptible to common proof at trial.

16

2. Having denied the Motion for Summary Adjudication

17 regarding the class as a whole, the Court also denies Defendant's

18 motions for summary judgment filed against individual class

19 members Scott Diehl, Diana Durston, Mike Deubert, Paul Avila, and

20 Allen Vogel. See In re Unisys Corp., No. 93-1668, 2002 U.S. Dist.

21 LEXIS 25737, at *12 (E.D. Pa. Jan. 30, 2002) ("The Court's denial

22 of summary judgment as to the class as a whole, however, is

23 binding as to all individual class members.").

24

3. The Court denies Defendant's Motion for Summary Judgment

25 Based on Bankruptcy Filings. The Court is not persuaded that

26 absent class members who have filed for bankruptcy and who have

27 not opted out of this case should be judicially estopped from

28

2

Case3:07-cv-02050-SC Document254 Filed11/19/10 Page3 of 4

United States District Court
For the Northern District of California

1 being part of the class. Their participation in this class action

2 is too passive for the equitable doctrine of judicial estoppel to

3 apply.

4

4. The Court denies Defendant's Motion to Dismiss Claims of

5 Class Members who Failed to Respond to Defendant's Discovery.

6 However, the Court will entertain a renewed motion to dismiss

7 after class members are provided with one final opportunity to

8 respond. Defendants were permitted to serve each class member

9 with 10 special interrogatories and 10 requests for production of

10 documents. Cruz Docket, ECF No. 150. Magistrate Judge Spero

11 required Plaintiffs' counsel to send a written notice to non-

12 responding class members. Cruz Docket, ECF No. 247. The Court

13 will require Plaintiffs' counsel, within 7 days of this Order, to

14 send another written notice to these class members indicating the

15 Court will dismiss them from the class if they do not respond. If

16 verified responses are not provided to Defendant's counsel within

17 21 days of Plaintiffs' mailing of the notice, then Defendant's

18 counsel may file a renewed motion for non-responding class members

19 to be dismissed.

20 ///

21 ///

22 ///

23 ///

24 ///

25 ///

26 ///

27 ///

28

3

Case3:07-cv-02050-SC Document254 Filed11/19/10 Page4 of 4

United States District Court
For the Northern District of California

1

5. The Court denies Defendant's Motion to Dismiss Certain

2 Class Members. At trial, Dollar Tree must show it realistically

3 expected store managers to be spending more than half of their

4 time on exempt tasks, and if Dollar Tree can show that 37 of the

5 273 class members responded "no" on the weekly certifications

6 merely because they were not working those weeks, then this

7 evidence helps rather than hurts its defense of this case. The

8 Court will not dismiss these class members on this basis.

9

10

IT IS SO ORDERED.

11

12

Dated: November 19, 2010

13 UNITED STATES DISTRICT JUDGE
14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

4

 
 Case3:07-cv-02050-SC Document259 Filed12/23/10 Page1 of 21

1 MAUREEN E. MCCLAIN, Bar No. 62050

KRISTA STEVENSON JOHNSON, Bar No. 185241

2 MATTHEW P. VANDALL, Bar No. 196962

LITTLER MENDELSON

3 A Professional Corporation

650 California Street, 20th Floor

4 San Francisco, CA 94108.2693

Telephone: 415.433.1940

5 Facsimile: 415.399.8490

Email:

mmcclain@littler.com

6

kjohnson@littler.com

mvandall@littler.com

7

8

Attorneys for Defendant DOLLAR TREE STORES, INC.

9 BETH HIRSCH BERMAN, VA Bar No. 28091

10

WILLIAMS MULLEN A Professional Corporation

11

999 Waterside Drive 1700 Dominion Tower

12

Norfolk, VA 23510 Telephone: 757.629.0604

13

Facsimile: Email:

757.629.0660 bberman@williamsmullen.com

14 Pro Hac Vice Attorneys for Defendant 15 DOLLAR TREE STORES, INC.

16

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

17

MIGUEL A. CRUZ and JOHN D.

Case Nos. C 07 2050 SC and C 07 04012 SC

18 HANSEN, individually and on behalf of all others similarly situated,

19 Plaintiffs,

20

v.

DEFENDANT DOLLAR TREE STORES, INC.’S NOTICE OF MOTION AND MOTION TO DISMISS CLAIMS OF CLASS MEMBERS WHO FAILED TO RESPOND TO DEFENDANT’S

21 DOLLAR TREE STORES, INC.,

DISCOVERY; MEMORANDUM OF POINTS AND AUTHORITIES [FED. R.

22

Defendant.

CIV. P. RULE 37]

23 ROBERT RUNNINGS, individually, and on behalf of all others similarly situated,

24 Plaintiff,

25

v.

26 DOLLAR TREE STORES, INC.,

Date:

January 28, 2011

Time:

10:00 a.m.

Dept.:

Crtrm. 1, 17th Floor

Judge:

Hon. Samuel Conti

Trial Date:

March 7, 2011

Complaints Filed: April 11, 2007

July 6, 2007

27

Defendant.

28
LIT T LE R ME NDE LSO N
A PROF E SSIONAL C ORPORAT ION 650 C a lifornia Stre e t 20th F loor
Sa n F ra ncisco, C A 94108.2693 4 1 5 . 43 3 . 19 4 0

DEF’S MOTION TO DISMISS CLAIMS OF CLASS MEMBERS WHO FAILED TO RESPOND TO DEF’S DISCOVERY

CASE NOS. C 07 2050 SC and C 07 04012 SC

Case3:07-cv-02050-SC Document259 Filed12/23/10 Page2 of 21

1

TABLE OF CONTENTS

2

PAGE

3 NOTICE OF MOTION AND MOTION ..........................................................................................1

4 MEMORANDUM OF POINTS AND AUTHORITIES ...................................................................6

5 I. INTRODUCTION AND SUMMARY OF ARGUMENT.....................................................6

6 II. FACTS.................................................................................................................................7

7

A. Procedural History....................................................................................................7

8

B. Defendant Has and Will Suffer Prejudice If The Relief Requested Is Not

Granted...................................................................................................................10

9

III. ARGUMENT .....................................................................................................................11

10

IV. CONCLUSION..................................................................................................................17

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

LIT T LE R ME NDE LSO N
A PROF E SSIONAL C ORPORAT ION 650 C a lifornia Stre e t

CAPTION (NO. C 07 2050 SC AND C 07

i.

20th F loor Sa n F ra ncisco, C A 94108.2693

04012 SC)

4 1 5 . 43 3 . 19 4 0

Case3:07-cv-02050-SC Document259 Filed12/23/10 Page3 of 21

1

TABLE OF AUTHORITIES

2

PAGE

3

CASES

4 Adriana International Corp. v. Thoeren, 913 F.2d, 1406-1412 (9th Cir. 1990) .........................................................................................12

5 Anderson v. Cagle’s Inc.,

6

488 F.3d 945, (11th Cir. 2007) ..................................................................................................15

Aquilino v. Home Depot U.S.A., Inc.,

7

2008 U.S. Dist. LEXIS 30819 (D.N.J. 2008) ...........................................................................15

8

Aztec Steel Co. v. Florida Steel Corp., 691 F. 2d 480 (11th Cir. 1982) ............................................................................................11, 16

9 Brennan v. Midwestern United Life Insurance Co., 450 F.2d 999 (7th Cir. 1971) .....................................................................................................14

10 Connecticut General Life Insurance CO. v. New Images of Beverly Hills,

11

482 F.3d 1091 .........................................................................................................................12

Cooks v. Alabama Shipyard, Inc.,

12

1999 U.S. Dist. LEXIS 8488 (S.D. Ala. 1999)..........................................................................15

13

Dellums v. Powell, 566 F.2d 167 (D.C. Cir. 1977)..................................................................................................16

14 Estrada v. RPS, Inc., 125 Cal. App. 4th 976, 23 Cal. Rptr. 3d 261 (2005)...................................................................15

15 Exxon Valdez,

16

102 F.3d 429 (9th Cir. 1996 ......................................................................................................11

Fjelstad v. American Honda Motor Co.,

17

762 F.2d 1334 (9th Cir. 1985); ..................................................................................................12

18

Henry v. Gill Industries, Inc., 983 F.2d 943 (9th Cir. 1993) .....................................................................................................12

19 Hyde & Drath v. Baker, 24 F.3d 1162 (9th Cir. ...............................................................................................................11

20 In re Amtrak Sunset Ltd. Train Crash,

21

136 F. Supp 2d 1251 (S.D. Ala. 2001)......................................................................................16

McDougle v. Dunn,

22

468 F.2d 468 (4th Cir. 1972) ......................................................................................................8

23

Phipps v. Blakeney, 8 F.3d 778, (11th Cir. 1993) ......................................................................................................11

24 Transamerican Rct. Corp., v. Dravo Corp.

139 F.R.D. 619 (S.D. Tex. 1991...............................................................................................16

25 United Artists Corp. v. La Cage Aux Folles,

26

771 F.2d 1265 (9th Cir. 1985) ...................................................................................................12

United States Ex. Rel. Wiltec Guam, Inc. v. Kahaluu Construction Company, Inc.,

27

857 F.2d 600 ............................................................................................................................11

28
LIT T LE R ME NDE LSO N
A PROF E SSIONAL C ORPORAT ION 650 C a lifornia Stre e t 20th F loor
Sa n F ra ncisco, C A 94108.2693 4 1 5 . 43 3 . 19 4 0

DEF’S MOTION TO DISMISS CLAIMS OF CLASS MEMBERS WHO FAILED TO RESPOND TO DEF’S DISCOVERY

CASE NOS. C 07 2050 SC and C 07 04012 SC

Case3:07-cv-02050-SC Document259 Filed12/23/10 Page4 of 21

1

2

3 United States v. Trucking Employers, Inc,.

72 F.R.D. 101, 1056 (D.D.C. 1976)..........................................................................................16

4 Wanderer v. Johnston, 910 F.2d 652,

5

656 (9th Cir. 1990)..............................................................................................................11, 12

6

STATUTES

Fed. R. Civ. P. Rule 37(b). ...............................................................................................................6

7 Fed. R. Civ. P.Rule 37(b)(2)(A)(iii)), .............................................................................................14

8

9

OTHER AUTHORITIES

10 Moore’s Federal Practice, Third, Section 37.51[I] ....................................................................11, 12

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

LITTLER MENDELSON DEF’S MOTION TO DISMISS CLAIMS OF

A PROF E SSIONAL C ORPORAT ION 650 C a lifornia Stre e t

CLASS MEMBERS WHO FAILED TO

ii.

20th F loor Sa n F ra ncisco, C A 94108.2693
4 1 5 . 43 3 . 19 4 0

RESPOND TO DEF’S DISCOVERY

CASE NOS. C 07 2050 SC and C 07 04012 SC

Case3:07-cv-02050-SC Document259 Filed12/23/10 Page5 of 21

1

NOTICE OF MOTION AND MOTION

2

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

3

PLEASE TAKE NOTICE that on January 28, 2011, at 10:00 a.m. before the Hon.

4 Samuel Conti of this Court, Defendant Dollar Tree Stores, Inc. (“Dollar Tree”) will move and hereby

5 does move the Court under Fed. R. Civ. P. 37(b), (d) for an order that the claims of the following

6 Plaintiffs be dismissed with prejudice for failing to respond to Defendant’s prior interrogatories and

7 requests to produce documents, despite a Court order to do so. In the alternative, Defendant requests

8 that the Plaintiffs’ claims be dismissed without prejudice, allowing them to pursue individual claims

9 if they wish. The 112 Plaintiffs who are the subject of this motion are as follows “hereinafter

10 Plaintiffs”:

11

Le'ann Alarcon

12

Jesus Alejandre

13

Brenda Anderson

14

Diane Ashley

15

Robin Baker

16

Alicia Barkley

17

Robert Beights

18

Eric Bent

19

Jeffrey Braun

20

Hope Brewer

21

Eloisa Buitron

22

Christy Camacho

23

Rosemary Carlos

24

Shawn Cassidy

25

Kim Castellanos

26

Karen Cohen

27

Amanda Coker

28

Mike Cossolotto

LITTLER MENDELSON DEF’S MOTION TO DISMISS CLAIMS OF

A PROF E SSIONAL C ORPORAT ION 650 C a lifornia Stre e t

CLASS MEMBERS WHO FAILED TO

1.

20th F loor Sa n F ra ncisco, C A 94108.2693
4 1 5 . 43 3 . 19 4 0

RESPOND TO DEF’S DISCOVERY

CASE NOS. C 07 2050 SC and C 07 04012 SC

Case3:07-cv-02050-SC Document259 Filed12/23/10 Page6 of 21

1

William Cramer

2

David Cross

3

William Curtis

4

Gregg Daggett

5

Deann Dasher

6

Chris Dean

7

Sally Delcastillo

8

Elaine Edwards

9

Jen Edwards

10

James Ellis

11

Gary Ferguson

12

Teresa Fletcher

13

Kathy Fortune

14

Cindy Fukuhara

15

Mark Gabellini

16

Kenneth Galle

17

Claudia Garcia

18

Eric S. Garcia

19

Mireya Gomez

20

Gabriela Gonzalez

21

Wilber Gonzalez

22

Bikira Green

23

Jean M. Gregg

24

Rachel Haines

25

Richard Handrich

26

Evelyn Hanson

27

Kathryn L. Hansson

28

Kent Harwood

LITTLER MENDELSON DEF’S MOTION TO DISMISS CLAIMS OF

A PROF E SSIONAL C ORPORAT ION 650 C a lifornia Stre e t

CLASS MEMBERS WHO FAILED TO

2.

20th F loor Sa n F ra ncisco, C A 94108.2693
4 1 5 . 43 3 . 19 4 0

RESPOND TO DEF’S DISCOVERY

CASE NOS. C 07 2050 SC and C 07 04012 SC

Case3:07-cv-02050-SC Document259 Filed12/23/10 Page7 of 21

1

Steven Hensley

2

Danny Herrera

3

Latuya Hobill

4

Naomi Star Hodgkins

5

Christina Hoes

6

William Huffer

7

Larry Huffstetler

8

Ron Jacobs

9

Chris James

10

Kirk Jansen

11

Hope Jennings

12

Betty Johnson

13

Charles Jones

14

Maria Juarez

15

Steve Kauhn

16

Ray Kienitz

17

Landon Kouba

18

Racheal Leggans

19

Rob Lewis

20

Tina Lipnicki

21

Tim Luddington

22

David Martin

23

Ricky Martin

24

Jesus Martinez

25

Sonia Martinez

26

Paul Massey

27

Adam Mcfarland

28

Rafael Mejia

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1

Janice Melo

2

Nephtali Mendoza

3

Jason Millstone

4

Oscar Molina

5

Miguel Munoz

6

Tom Nelson

7

Killian Nowden

8

Amy Osborn

9

Vaensa Pan

10

Michelle Panattoni

11

Michael Pastrone

12

Ruth E. Phipps

13

Joseph Prophet

14

Brandon Raes

15

Valentin Ramirez

16

Eleazar Reyes

17

Lorie Reyes (Kiefer)

18

David N. Robson

19

Monica Rosas

20

Norman Saban

21

Brandon Salazar

22

Jules Sanchez

23

Heidi Semenza

24

Tom Shaff

25

Susan Sigler

26

Brian A. Sjostrand

27

Billie Soto

28

Steven Taylor

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1

Christina Valdez

2

Mike Van Buren

3

Joseph Vara

4

Edwin H. Walthall

5

Patti Wenzel

6

Kip Whiteacre

7

Deborah A. Wiebe

8

Robert Willey

9

Pat Woolweaver

10

Elizabeth Yoder

11

This Motion is based on Plaintiffs’ continued refusal to provide discovery requested

12 of them, despite a Court Order that they do so. This Motion is based on this Notice of Motion and

13 Motion, Proposed Order, Declaration of Matthew Vandall, the files in this case, and any evidence or

14 argument produced in reply papers or at the hearing.

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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1

MEMORANDUM OF POINTS AND AUTHORITIES

2 I. INTRODUCTION AND SUMMARY OF ARGUMENT

3

The 112 Class Members (“CMs”) who are the subject of this Motion to Dismiss are

4 present or former Dollar Tree Store Managers who claim they are owed overtime wages, meal and

5 rest period premiums, restitution and penalties. There are approximately 273 class members

6 (Vandall Decl. ¶ 3). Of the 273, the 112 who are the subject of this Motion failed to respond to

7 Defendant’s Request for Production of Documents and Special Interrogatories despite a court order.

8 The responses were due July 16, 2010. Yet, over five months later, and after two warning letters

9 were ordered by the Court, Plaintiffs still failed to respond to the court ordered discovery,

10 prejudicing Defendant. The Plaintiffs were given ample warning that if they failed to respond their

11 claims would be subject to dismissal.

12

On November 19, 2010 this Court denied Defendant’s prior motion to dismiss the

13 claims of those Class members who failed to respond to discovery, but stated that it would entertain

14 a renewed motion to dismiss after the non-responsive Class Members were provided with one final

15 opportunity to respond (Vandall Decl. Exh U). The Court ordered Plaintiffs’ counsel to send another

16 written notice to all non-responsive Class Members indicating that the Court will dismiss them from

17 the Class if they do not respond to Defendant’s discovery. Non-responsive Class Members were

18 given 21 days from the mailing of the warning notice to provide verified discovery responses. Id.

19 Defendant’s counsel was invited to file a renewed motion seeking that any non-responsive Class

20 Members be dismissed. (ECF No. 254, p. 3, ¶ 4) Plaintiffs’ counsel sent the (second) warning letter

21 on November 23, 2010 (Vandall Decl. Exh V). As of December 17, 2010, only thirty-two (32)

22 additional Class Members have responded to the discovery. Defendant renews its motion to dismiss

23 the remaining 112 non-responsive Class Members. Defendant brings this Motion to Dismiss with

24 prejudice pursuant to Fed. R. Civ. P. Rule 37(b), (d)(1). In the unlikely event the Court does not

25 dismiss the claims with prejudice, they should be dismissed without prejudice, to allow them to

26 pursue their own individual suits.

27

28

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1 II. FACTS

2

A. Procedural History

3

As a result of Defendant’s partially successful Motion to Decertify the Class, the

4 current class consists of “all persons who were employed by Dollar Tree Stores, Inc. as California

5 retail store managers at any time on or after December 12, 2004, and on or before May 26, 2009, and

6 who responded ‘no’ at least once on Dollar Tree’s weekly payroll certifications.” (Vandall Decl.,

7 Exh. A, September 9, 2010 Order Granting in Part and Denying in Part Defendant’s Motion to

8 Decertify, ECF Document No. 260, page 23, lines 4-8). There are approximately 273 Class

9 Members (Vandall Decl. ¶ 3).

10

Trial is scheduled to begin on March 7, 2011 and the non expert discovery cutoff was

11 October 15, 2010. (Vandall Decl., Exh. B, 3/25/10 Order After Case Management Conference

12 (“CMC Order” at ¶¶ 5, 9).

13

On March 25, 2010, this Court ordered that Defendant could serve each Class

14 Member with 10 Special Interrogatories and 10 Requests for Production of Documents. (“Class

15 Discovery Requests”). (CMC Order at ¶ 1 (Vandall Decl., Exh. B) Defendant served the Class

16 Discovery Requests on March 26, 2010. (Vandall Decl., Exhs. C, D) On April 26, 2010, Class

17 Counsel served Model Objections to all of the written discovery requests. (Vandall Decl., Exh. E,

18 Model Objections to Interrogatories, and Exh. F, Model Objections to Requests for Production of

19 Documents). The Model Objections asserted many boilerplate objections in an apparent attempt to

20 evade Plaintiffs’ discovery obligations altogether. After revising some of the requests Defendant

21 brought a motion to compel responses to the Class Discovery Requests. On June 9, 2010, the

22 Honorable Joseph Spero heard the Motion and ordered that slightly modified Interrogatories and

23 Requests for Production of Documents be sent to Class Members, and ordered Plaintiffs to respond

24 to such requests by July 16, 2010. (Vandall Decl., Exh. G, ¶ 8 (Order), Exh. H page 29 (Transcript

25 of June 9, hearing). Defendant served modified Class Discovery Requests in compliance with Judge

26 Spero’s Order on June 10, 2010 (Copies attached as Exhibits I, J to Vandall Decl.).

27

On July 16, 2010, Plaintiffs submitted verified responses on behalf of 215 of the then

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718 Class Members. For the remaining Class Members, Plaintiffs served unverified objections and

DEF’S MOTION TO DISMISS CLAIMS OF

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1 stated that no information was available.1 (Vandall Decl., Exhs. K, L (sample objections).) In the

2 following weeks, Plaintiffs submitted verified discovery responses for only 8 additional Class

3 Members, two of which are members of the revised Class. (Vandall Decl., ¶7) The 112 Class

4 Members who are the subject of this Motion submitted no signed discovery responses, only

5 objections and a statement that no information was available (Vandall Decl. Exhs. K, L) (Vandall

6 Dec. ¶7).

7

On August 27, 2010, Defendant’s counsel requested that Class counsel send a letter to

8 the non-responsive Class Members, advising them that their claims would be dismissed if they did

9 not respond to the Class Discovery Requests. (Vandall Decl., Exh. M) Class counsel failed to do so.

10 (Vandall Decl., ¶8).

11

On September 9, 2010, this Court issued an Order partially decertifying the Class

12 (ECF Document No. 260, Vandall Decl., Exh. A). As a result, the class size was reduced from 718

13 to approximately 273 members.

14

On October 14, 2010, upon a motion filed by Defendant, Magistrate Judge Spero

15 ordered that a warning notice be sent to all Class Members who had not responded to Class

16 Discovery Requests advising them that their claims would be dismissed if they did not respond to the

17 discovery by October 29, 2010. (Vandall Decl., ¶ 11.) Plaintiffs’ counsel mailed the warning notice

18 to all non-responsive Class Members on October 18, 2010. (Vandall Decl., Exh. R.)

19

Judge Spero stated that any Motion to Dismiss for failure to respond to the discovery

20 would need to be heard by Judge Conti. (Vandall Decl., Exh. H, June 9, 2010 hearing pg. 27:1-18).

21

On November 1, Defendant received verified discovery responses from eight

22 additional Class Members (Defendant does not move to dismiss the claims of these individuals). On

23 November 3, Defendant received supplemental discovery responses from four Class Members who

24 had previously provided objections (Defendant does not seek to dismiss these individuals). (Vandall

25 Decl., ¶¶ 13, 14).

26

27
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1 Unsigned interrogatory responses are tantamount to no response at all. McDougle v. Dunn, 468

F.2d 468, 472 (4th Cir. 1972)

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1

On November 19, 2010, this Court denied Defendant’s motion to dismiss the claims

2 of those Class Members who failed to respond to discovery, but stated that it would entertain a

3 renewed motion to dismiss after Class Members were provided with one final opportunity to

4 respond. The Court ordered Plaintiffs’ counsel to send another written notice to non-responsive

5 Class Members advising them that the Court would dismiss them from the class if they did not

6 respond to Defendant’s discovery. Non-responsive Class Members were given 21 days from the

7 mailing of the notice to provide verified discovery responses. Defendant’s counsel was invited to

8 file a renewed motion that non-responsive Class Members be dismissed. (ECF No. 254, p. 3, ¶ 4)

9

Although requested to do so on December 2nd, Plaintiffs’ counsel refused to provide

10 Defendant with a copy of the (second) warning letter or proof of service for that letter. (Vandall

11 Decl., ¶ 19). On December 6th, however, Class counsel indicated that the warning letter was mailed

12 on November 23, 2010. (Vandall Decl., Exh V.)

13

On December 3, 2010, Plaintiffs’ counsel wrote a letter to Defendant’s counsel

14 stating that they were having difficulty contacting some Class Members, and requesting assistance in

15 locating them. On December 7, Defendant’s counsel responded with updated contact information

16 for nine employees on Plaintiffs’ counsel’s December 3 list who were employed by Dollar Tree as of

17 March 2, 2010, the last time Defendant produced updated contact information at Class counsel’s

18 request, and whose contact information had changed since that date. (Vandall Decl., Exh. X).

19 Shortly thereafter, Defendant’s counsel verified that the contact information for all but three former

20 employees on Plaintiffs’ counsel’s December 3 list accurately reflected the information contained in

21 Defendant’s files and provided new contact information for the three former employees who had

22 provided Dollar Tree with updated contact information since their departure. (Vandall Decl., ¶ 20).

23

As of December 17, 2010, only thirty-two (32) additional Class Members responded

24 to the discovery requests (Vandall Decl. ¶ 21)2. Hence, there are 112 Class Members who should be

25 dismissed from this action.

26

27
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2 While these responses were inadequate, these individuals are not the subject of this motion, which

is directed only to those Class Members who filed no responses. (Vandall Decl. ¶ 21).

DEF’S MOTION TO DISMISS CLAIMS OF

CLASS MEMBERS WHO FAILED TO

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B. Defendant Has and Will Suffer Prejudice If The Relief Requested Is Not Granted Defendant has, and will suffer considerable prejudice in this matter, including in
preparing for trial, without responses to the Class Discovery requests. Defendant suffered prejudice by having to file its decertification motions without the benefit of the discovery responses from the non-responsive class members. Its first motion was only partly successful and the second decertification motion was denied. Defendant also lost the opportunity to use the discovery responses for their dispositive motions for summary judgment and dismissal. (Vandall Decl. ¶ 22) Further, Defendant will have difficulty raising defenses to the individual claims of these Class Members without the benefit of their responses to the Class Discovery Requests, which includes the amount of time spent in various tasks, the veracity and meaning of their weekly written certifications of their weekly job duties, their experience taking meal and rest periods, the number of hours they worked during the Class Period, and their description of the work typically performed each week. (Vandall Decl., ¶ 22.) This information is crucial to a proper defense. Further, Defendant has difficulty making a reasonable estimate of its potential liability in this matter, given the refusal of Class Members to provide estimates of the number of hours worked, and the number of meal and rest periods taken. (Vandall Decl., ¶ 22) Defendant cannot determine which Class members, if any, to possibly call as adverse witnesses at trial (Vandall Decl. ¶ 22). Defendant also needs these responses to potentially impeach any trial witnesses of Plaintiffs. (Vandall Decl. ¶ 22) The information is also relevant to two of Defendant’s experts and their trial testimony. (Vandall Decl. ¶ 23)
Plaintiffs’ responses received on November 1 (responses from eight individuals) and December 14 (responses from 32 individuals) were inadequate (Vandall Decl. ¶ 13, 21; Exhs. Z, AA). For example, several CMs failed to provide a meaningful description of how they used various Dollar Tree tools and stated instead only that they used them (Vandall Decl. ¶ 13, 21; Exhs. Z, AA). (These individuals are not the subject of this motion). However, Defendant cannot move to compel further responses since discovery is closed. (Vandall Decl. ¶ 21). This creates further prejudice to Defendant in preparing for trial. It must try to prepare for trial with inadequate discovery responses.

DEF’S MOTION TO DISMISS CLAIMS OF

CLASS MEMBERS WHO FAILED TO

10.

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1

The discovery requests at issue were first served almost nine months ago. (Vandall

2 Decl., ¶5) They were mailed to Class Members in June, over six months ago. Plaintiffs have

3 continued to ignore the Court’s June 9, 2010 Order, and two warning letters from the Court.

4 Plaintiffs received ample warning of this Motion. (Vandall Decl. ¶ 11, 12, 19 and Exhs. R, V).

5 III. ARGUMENT

6

Fed. R. Civ. P. Rule 37(b)(2)(A)(v) allows the Court to dismiss an action or

7 proceeding in whole or in part, if a party disobeys a discovery order. Fed R. Civ. P. Rule 37(d)(1),

8 (3) also allows dismissal as a sanction for failing to respond to discovery. Orders under Rule 37 are 9 subject to an abuse of discretion standard on appeal. Phipps v. Blakeney, 8 F.3d 778, 790 (11th Cir.

10 1993) District courts have broad discretion in determining whether to impose Rule 37 non-monetary

11 sanctions. Moore’s Federal Practice, Third, Section 37.51[I] p. 37-96; United States Ex. Rel. Wiltec 12 Guam, Inc. v. Kahaluu Construction Company, Inc., 857 F.2d 600, 602 (9th Cir. 1988).

13

Dismissal is not an abuse of discretion “[w]hen a party demonstrates flagrant

14 disregard for the Court and the discovery process”. Aztec Steel Co. v. Florida Steel Corp., 691 F. 2d 15 480, 482 (11th Cir. 1982), cert denied 460 U.S. 1040, 103 S. Ct. 1433, 75 L. Ed. 2d 792 (1983)

16

The Ninth Circuit has identified several factors that the Court must consider in

17 determining whether to impose dismissal or default sanctions for a party’s failure to comply with a

18 discovery order. A district court must consider the following:

19

(1) the public’s interest in expeditious resolution of litigation; (2) the

Court’s need to manage its docket; (3) the risk of prejudice to the party

20

seeking sanctions; (4) the public policy favoring disposition of cases

on their merits; [and] (5) the availability of less drastic actions. 21

22 Moore’s Federal Practice, Third supra, page 37-95; In Re Exxon Valdez, 102 F.3d 429, 433 (9th Cir.

23 1996); Hyde & Drath v. Baker, 24 F.3d 1162, 1166-1167 (9th Cir. 1994); Wanderer v. Johnston, 910

24 F.2d 652, 656 (9th Cir. 1990).

25

The Ninth Circuit has established three subparts for the fifth factor (the availability of

26 less drastic sanctions): (1) whether the court considered lesser sanctions; (2) whether it tried the

27 lesser sanctions; and (3) whether it warned the recalcitrant party about the possibility of case

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11.

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1 dispositive sanctions. Moore’s Federal Practice, Third, supra, page 37-95; Connecticut General Life 2 Insurance Co. v. New Images of Beverly Hills, 482 F.3d 1091, 1096 (9th Cir. 2007).

3

“The first two of these [five] factors favor the imposition of sanctions in most cases,

4 while the fourth cuts against a . . . dismissal sanction. Thus the key factors are prejudice and the 5 availability of lesser sanctions.” Henry v. Gill Industries, Inc., 983 F.2d 943, 948 (9th Cir. 1993);

6 Wanderer v. Johnston, supra, 910 F.2d at 656. Only willfulness, bad faith and fault justify

7 terminating sanctions. Connecticut General Life Insurance Co. v. New Images of Beverly Hills, 482 8 F.3d 1091, 1096 (9th Cir. 2007). However, “disobedient conduct not shown to be outside the control

9 of the litigant is all that is required to demonstrate willfulness, bad faith or fault.’’ Henry supra, 983 10 F.2d at 948, quoting from Fjelstad v. American Honda Motor Co., 762 F.2d 1334, 1341 (9th Cir. 11 1985); United Artists Corp. v. La Cage Aux Folles, 771 F.2d 1265, 1270 (9th Cir. 1985) disapproved 12 on other grounds in Mount Graham v. Madigan, 954 F.2d 1441, 1462 (9th Cir. 1992) (order of

13 dismissal affirmed; plaintiffs argument that his “travel schedule” prevented him from answering

14 interrogatories for three months “indicated a lack of diligence in keeping abreast of the status of his

15 case” and did not excuse his failure to answer).

16

With respect to the third factor (the risk of prejudice to the moving party) “[a]

17 defendant suffers prejudice if the plaintiff’s actions impair the defendant’s ability to go to trial or

18 threatens to interfere with the rightful decision of the case.” Henry, supra, 983 F.2d at 948, quoting 19 from Adriana International Corp. v. Thoeren, 913 F.2d, 1406-1412 (9th Cir. 1990).

20

Four of these five factors supports the request for dismissal here. The first and

21 second factors (public’s interest in expeditious resolution of litigation and the Court’s need to

22 manage the docket) favor dismissal. The case is scheduled for trial in March of 2011. The Court

23 ordered all non-expert discovery to be concluded by October 15, 2010. Allowing Plaintiffs another

24 opportunity to respond to the discovery requests would likely cause delay in the trial date. Likewise,

25 the Court’s need to manage its docket favors dismissing the Plaintiffs from the suit. The Court can

26 properly decide the merits of the Class claims of those Class Members who have fulfilled their

27 responsibility as litigants by responding to the Class Discovery Requests at the trial in March of

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2011. Those Class Members who have blatantly ignored the Court’s order that they respond to the

DEF’S MOTION TO DISMISS CLAIMS OF

CLASS MEMBERS WHO FAILED TO

12.

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1 discovery should not share in the fruits of the trial (if any). All parties are entitled to a prompt

2 resolution of this matter on the trial date scheduled. Allowing the non responding Class Members 3 another chance to comply with the Court’s June 9th Order compelling them to respond to the

4 discovery would only cause further delay in resolving this case.

5

As to the third factor, Defendant has, and will suffer prejudice if the relief sought is

6 not granted for the reasons discussed above. Defendant was unable to use the discovery responses in

7 its decertification motion, or its potentially dispositive dismissal and summary judgment motions.

8 Defendant cannot properly prepare for trial without receiving the responses to the discovery. For

9 example, Defendant will have difficulty raising individual defenses to the claims of these Class

10 Members without the benefit of their responses to the discovery, including such information as the

11 amount of time they spent on various tasks, their taking of meal and rest periods during their

12 employment, the number of hours they worked during the class period, and questions concerning

13 their weekly certifications of their job duties (Vandall Decl., ¶ 22). Defendant has difficulty in

14 making a reasonable estimate as to potential liability in this matter, given the refusal of 112 Plaintiffs

15 out of 273 remaining class members to provide estimates of the number of hours worked and the

16 number of meal and rest periods taken (Vandall Decl., ¶ 22). Defendant may want to use the

17 information from the Class Discovery Responses to give to its experts for inclusion in its expert

18 report (Vandall Decl., ¶ 23). Further, Defendant could use the responses to possibly subpoena

19 Plaintiffs as adverse witnesses at trial, and to impeach any potential trial witnesses (Vandall Decl., ¶

20 22). Plaintiffs’ late responses on November 1 and December 14, 2010 are inadequate, yet Defendant

21 cannot move to compel further responses as discovery closed October 31. This creates additional

22 prejudice to Defendant (Vandall Decl., ¶ 21).

23

As to the fourth factor, the public policy favoring disposition of cases on their merits

24 would cut against dismissing the claims with prejudice, but none of the five factors are dispositive.

25

As to the fifth factor, less drastic sanctions were sought in the form of two final

26 warning notices. On June 9, 2010, Judge Spero ordered Plaintiffs to respond to the Class Discovery

27 Requests by July 16, 2010 (Vandall Decl. Exh. G). On October 14, 2010 Judge Spero also issued an

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order that a warning letter should be sent to all class members who had not responded to the

DEF’S MOTION TO DISMISS CLAIMS OF

CLASS MEMBERS WHO FAILED TO

13.

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1 discovery (Vandall Decl., ¶ 11). Class members were given until October 29 to respond to the

2 discovery requests under penalty of possible dismissal of their claims (Vandall Decl., ¶ 11). The

3 warning was mailed to all class members who are the subject of this Motion on October 18 (Vandall

4 Decl., ¶ 12). Only eight previously non-responsive Class Members provided discovery responses

5 after receipt of the October 18 warning letter (Vandall Decl., ¶ 13). On November 23, Defendant’s

6 counsel served a second warning letter pursuant to this Court’s Order. (ECF No. 254, p.3, ¶ 4).

7 Only 32 additional Class Members provided discovery responses after receipt of the second warning

8 letter. The Class Members who are the subject of this motion filed no responses. (Vandall Decl., ¶¶

9 7, 21).

10

While a Court can order that a disobedient party be precluded from presenting certain

11 claims or contesting defenses instead of dismissal (Fed. R. Civ. P.Rule 37(b)(2)(A)(ii)), this would

12 not be feasible, particularly if the Court allows the Plaintiffs to proceed at trial by way of

13 “representative” testimony. (See Vandall Decl., Exh. A, 9/9/10 Order, p. 21 fn. 5). If

14 “representative” testimony is allowed, precluding the 112 non-responsive Plaintiffs from presenting

15 evidence would be a meaningless sanction. Furthermore, since the discovery at issue covers all of

16 the Plaintiffs’ claims, precluding Plaintiffs from presenting the claims would be tantamount to a

17 dismissal. The lesser sanction of claim preclusion under Fed. R. Civ. P. Rule 37(b)(2)(A)(ii) is not

18 feasible.

19

Monetary sanctions would be inadequate as they would be difficult, if not impossible,

20 to collect from the 112 Class Members, and would not eliminate any of the prejudice Defendant has

21 and will suffer as a result of Plaintiffs’ failure to respond to the Class Discovery Requests.

22

In Brennan v. Midwestern United Life Insurance Co., 450 F.2d 999 (7th Cir. 1971),

23 the Court upheld the dismissal of absent class members who refused to comply with discovery

24 requests. The absent class members had been sent the written discovery along with a memorandum

25 explaining the reasons for the discovery requests, advising them of the deadline for responding and

26 encouraging the class members to seek the advice of counsel. Brennan, supra, 450 F.2d at 1002.

27 The absent class members who had not responded were notified that their claims would be dismissed

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if they did not respond to the discovery. The appellate court upheld the district court’s dismissal of

DEF’S MOTION TO DISMISS CLAIMS OF

CLASS MEMBERS WHO FAILED TO

14.

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1 the case with prejudice as to those absent class members who failed to respond to the discovery. The

2 Court noted that “movants ignored repeated requests that they comply with the discovery orders.”

3 The Brennan court also noted that it could have taken the lesser step of dismissing the plaintiffs from

4 the class without prejudice and allowing them to proceed with their individual claims if any,

5 (Brennan, supra, 450 F.2d at 1004 n. 2).

6

Likewise in Estrada v. RPS, Inc., 125 Cal. App. 4th 976, 23 Cal. Rptr. 3d 261 (2005)

7 the trial Court approved the defendant’s sending a questionnaire to the class members in a wage hour

8 class action. About half of the 550 putative class members failed to respond to the questionnaire.

9 The trial Court dismissed with prejudice the claims of those class members who had failed to

10 respond to the questionnaire (Estrada, supra, at 982-983.) While the Court of Appeals in Estrada

11 affirmed the dismissal for lack of standing without addressing the merits, the case supports

12 Defendant’s request here.

13

In Aquilino v. Home Depot U.S.A., Inc., 2008 U.S. Dist. LEXIS 30819 (D.N.J. 2008),

14 a class of assistant store managers (ASMs) sued defendant Home Depot alleging failure to pay

15 FLSA-mandated overtime wages. The court authorized a short set of interrogatories to an initial

16 group of 58 ASMs. There were few initial responses, and those that came in were incomplete or

17 uncertified, so the court ordered compliance and briefly extended the response period. Ultimately,

18 15 ASMs failed to respond and 17 failed to certify their responses. The remaining 26 apparently

19 responded in full. The Court dismissed from the case without prejudice the 32 plaintiffs who either

20 failed to respond, or failed to certify their responses. See also, Anderson v. Cagle’s Inc., 488 F.3d 21 945, 950 (11th Cir. 2007), cert. denied, 128 S. Ct. 2902 (2008) (of the employees opting-in to a

22 FLSA collective action, “115 were dismissed for failure to comply with discovery requests”).

23

Plaintiffs’ disobedient conduct has prejudiced Dollar Tree. The information Dollar

24 Tree sought – with explicit Court approval – is necessary to defend itself and make wise decisions

25 regarding this case. Without complete, sworn, and timely responses, Dollar Tree has been frustrated

26 in its efforts to properly defend itself. Only terminating sanctions will adequately address the

27 prejudicial effect of such bad faith. See Phipps, supra, 8 F.3d at 791; Cooks v. Alabama Shipyard,

28
LIT T LE R ME NDE LSO N
A PROF E SSIONAL C ORPORAT ION 650 C a lifornia Stre e t 20th F loor
Sa n F ra ncisco, C A 94108.2693 4 1 5 . 43 3 . 19 4 0

Inc., 1999 U.S. Dist. LEXIS 8488 (S.D. Ala. 1999).

DEF’S MOTION TO DISMISS CLAIMS OF

CLASS MEMBERS WHO FAILED TO

15.

RESPOND TO DEF’S DISCOVERY

CASE NOS. C 07 2050 SC and C 07 04012 SC

Case3:07-cv-02050-SC Document259 Filed12/23/10 Page20 of 21

1

In their opposition to the final warning motion of Defendant (September 27, 2010,

2 Joint Letter Vandall Decl., Exh. N, pp. 6-8), Plaintiffs’ counsel argued that the Brennan case had not

3 been followed, and that the discovery should not have been sent to absent class members. However,

4 Plaintiffs already lost this battle when the Court ordered the limited discovery be sent to putative

5 Class members in its May 25, 2010 Order (CMC Order at Paragraph 1, Vandall Decl., Exh. B).

6 Plaintiffs give no reason why the court should reconsider its CMC order.

7

Many other Courts have permitted interrogatories to be sent to unnamed class

8 members. Transamerican Refining. Corp., v. Dravo Corp. 139 F.R.D. 619, 622 (S.D. Tex. 1991;

9 Dellums v. Powell, 566 F.2d 167, 187 (D.C. Cir. 1977), disapproved on other grounds in Bell v. 10 Little Axe Independent School Dist. No. 70, 766 F.2d 1391, 1411 (10th Cir. 1985) (document requests

11 to unnamed Class members permitted); United States v. Trucking Employers, Inc,. 72 F.R.D. 101,

12 105 (D.D.C. 1976) (interrogatories permitted); Cornn v. UPS, 2006 W.L. 2642540 (N.D. Cal. 2006)

13 (approving sending of interrogatories to absent class members); Easten & Co. v. Mutual Benefit Life,

14 1994 U.S. Dist. Lexis 12 308 (D.N.J. 1996) (discovery to absent class members permitted); M.

15 Berenson Co., Inc. v. Faneuil Marketplace, Inc., 103 F.R.D. 635 (D. Mass. 1984) (discovery to

16 absent class members can proceed when the information is relevant, the interrogatories or document

17 requests are tendered in good faith and are not unduly burdensome, and where the information is not

18 available from the representative parties). Allowing the discovery here was well within the Court’s

19 discretion.

20

This case is no different than any other case of a parties’ refusal to respond to

21 discovery. It would be grossly unfair to allow the Plaintiffs to share in a possible monetary recovery

22 in this case, without sharing in the minimal burden of responding to the discovery ordered by the

23 Court.

24

Moreover, Plaintiffs should not be allowed to willfully violate Court orders without

25 consequences. The integrity of the Court will suffer if the motion is not granted. Aztec Steel Co.,

26 supra 691 F.2d 480, 482; In re Amtrak Sunset Ltd. Train Crash, 136 F. Supp 2d 1251, 1265 (S.D.

27 Ala. 2001)

28
LIT T LE R ME NDE LSO N
A PROF E SSIONAL C ORPORAT ION 650 C a lifornia Stre e t 20th F loor
Sa n F ra ncisco, C A 94108.2693 4 1 5 . 43 3 . 19 4 0

//
DEF’S MOTION TO DISMISS CLAIMS OF CLASS MEMBERS WHO FAILED TO RESPOND TO DEF’S DISCOVERY

16.

CASE NOS. C 07 2050 SC and C 07 04012 SC

Case3:07-cv-02050-SC Document259 Filed12/23/10 Page21 of 21

1 IV. CONCLUSION

2

The CMs violated the Court’s June 9 discovery order. CMs have had ample warning

3 of this Motion. Defendant needs the information in the Class Discovery to defend itself in the case.

4 It is not unfair for CMs to be dismissed with prejudice. In the unlikely event the Court declines to do

5 so, CMs should be dismissed without prejudice, so they can file their own suits if they choose.

6

Pursuant to Local Rule 7-8, by separate motion, Defendant reserves the right to seek

7 monetary sanctions for the cost of bringing this Motion to Dismiss.3

8

9 Dated: December 23, 2010
10

Respectfully submitted.

11

/s/ Matthew Vandall

12

MATTHEW VANDALL

LITTLER MENDELSON

13

A Professional Corporation

Attorneys for Defendant

14

DOLLAR TREE STORES, INC.

15
Firmwide:99227506.3 061603.1004
16

17

18

19

20

21

22
23
24
25
26
27
28
LIT T LE R ME NDE LSO N
A PROF E SSIONAL C ORPORAT ION 650 C a lifornia Stre e t 20th F loor
Sa n F ra ncisco, C A 94108.2693 4 1 5 . 43 3 . 19 4 0

3 Defendant complied with all meet and confer obligations prior to filing this Motion. In the joint

letter brief to Judge Spero, Defendant’s counsel advised Plaintiffs’ counsel that any Plaintiffs who

did not respond to discovery would be subject to a motion to dismiss (Vandall Decl., Exh. N., p. 2). Plaintiffs’ counsel admitted receiving this warning at the June 9th hearing (Vandall Decl., Exh. H, p.

25:24-26:21). On September 28, 2010, Defendant’s counsel once again informed Plaintiffs’ counsel

that it intended to bring a motion for dismissal under Rule 37. Plaintiff’s counsel stated that

Plaintiffs would not voluntarily dismiss or stipulate to remove these individuals from the class

(Vandall Decl., Exh. O).

After the second warning letter was sent by Plaintiffs’ counsel to the Class on November 23,

Defendant’s counsel notified Plaintiffs’ counsel that the Rule 37 motion would be renewed for non-

responsive Class Members. Plaintiffs’ counsel would not voluntarily dismiss them. (Vandall Decl.,

¶ 25). Defendant has fulfilled all meet and confer requirements.

DEF’S MOTION TO DISMISS CLAIMS OF

CLASS MEMBERS WHO FAILED TO

17.

RESPOND TO DEF’S DISCOVERY

CASE NOS. C 07 2050 SC and C 07 04012 SC

 
 Case3:07-cv-02050-SC Document268 Filed01/17/11 Page1 of 23

SCOTT COLE & ASSOCIATES, APC
ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR
OAKLAND, CA 94612 TEL: (510) 891-9800

1 Scott Edward Cole, Esq. (S.B. #160744) Molly A. DeSario, Esq. (S.B. #230763)
2 SCOTT COLE & ASSOCIATES, APC 1970 Broadway, Ninth Floor
3 Oakland, California 94612 Telephone: (510) 891-9800
4 Facsimile: (510) 891-7030 email: scole@scalaw.com
5 email: mdesario@scalaw.com web: www.scalaw.com
6
Attorneys for Representative Plaintiffs 7 and the Plaintiff Class

8

9

UNITED STATES DISTRICT COURT

10

NORTHERN DISTRICT OF CALIFORNIA, SAN FRANCISCO DIVISION

11

)

12 MIGUEL A. CRUZ and JOHN D.

) Case No. C-07-2050 SC

HANSEN, individually, and on behalf )

13 of all others similarly situated,

) CLASS ACTION

14

Plaintiffs,

15 vs.

16 DOLLAR TREE STORES, INC.,

17

Defendant.

)
) PLAINTIFFS’ MEMORANDUM IN ) OPPOSITION TO DEFENDANT DOLLAR ) TREE STORES, INC.’S MOTION TO ) DISMISS CLAIMS OF CLASS MEMBERS ) WHO FAILED TO RESPOND TO ) DEFENDANT’S DISCOVERY
)

)
18 ROBERT RUNNINGS, individually, ) Case No.: C-07-4012 SC (Consolidated Action)

and on behalf of all others similarly 19 situated,

)
) CLASS ACTION

)

20

Plaintiffs,

)

vs.

)

21 DOLLAR TREE STORES, INC.,
22
Defendant. 23

)
) Date: February 4, 2011 ) Time: 10:00 a.m. ) Dept.: Courtroom 1, 17th Floor ) Judge: Hon. Samuel Conti

24

25

26

27

28

Plaintiffs’ Opp. to Defendant’s Motion to Dismiss Claims of Class Members Who Failed to Respond to Discovery

Case3:07-cv-02050-SC Document268 Filed01/17/11 Page2 of 23

SCOTT COLE & ASSOCIATES, APC
ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR
OAKLAND, CA 94612 TEL: (510) 891-9800

1 2
I. 3
II. 4
III. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27
IV. 28

TABLE OF CONTENTS
INTRODUCTION ...............................................................................................................1 STATEMENT OF FACTS ..................................................................................................2 LEGAL ARGUMENT.........................................................................................................5 A. DEFENDANT’S MOTION TO DISMISS IS PROCEDURALLY
IMPROPER..............................................................................................................5 1. The MTD Does Not Comply with FRCP 12(B)(6) Requirement................5 2. Dismissal is Not an Appropriate Sanction Because Absent Class
Members are Not Parties..............................................................................5 3. Neither Plaintiffs Nor any Pertinent Class Members Have Disobeyed
a Discovery Order ........................................................................................6 4. Defendant's MTD Improperly Asks this Court to Impose a de facto
"Opt In" Scheme ..........................................................................................7 B. COURTS DO NOT ISSUE TERMINATING SANCTIONS AGAINST
UNREACHABLE ABSENT CLASS MEMBERS IN RULE 23 CLASS ACTIONS FOR DISCOVERY LAPSES ................................................................8 1. Dollar Tree's References to Cases Where Absent Class Member
Discovery Was Permitted Do Not Support its Request for Sanctions .........8 2. The Cases Where Absent Class Members Were Dismissed are
Inapposite ...................................................................................................10 3. The Majority of Courts Declined to Follow Brennan ................................11 C. TERMINATING SANCTIONS ARE INAPPROPRIATE WHERE DEFENDANT HAS NOT SHOWN WILLFUL OR BAD FAITH DISREGARD .........................................................................................................13 D. DOLLAR TREE WILL NOT BE PREJUDICED IF THIS COURT DENIES THE MTD ..............................................................................................................15 CONCLUSION ..................................................................................................................17

-iiPlaintiffs’ Opp. to Defendant’s Motion to Dismiss Claims of Class Members Who Failed to Respond to Discovery

Case3:07-cv-02050-SC Document268 Filed01/17/11 Page3 of 23

SCOTT COLE & ASSOCIATES, APC
ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR
OAKLAND, CA 94612 TEL: (510) 891-9800

1

TABLE OF AUTHORITIES

2 Cases

3 Adriana Intern. Corp. v. Thoeren,

4

913 F.2d 1406 (9th Cir. 1990) .................................................................................................. 13

Allen v. Exxon Corp.,

5

102 F.3d 429 (9th Cir. 1996) .................................................................................................... 13

6 Anderson v. Cagle’s, Inc.,

488 F.3d 945 (11th Cir. 2007) .................................................................................................. 11 7
Aquilino v. Home Depot U.S.A., Inc.,

8

2008 U.S. Dist. LEXIS 30819 (D. N.J. Apr. 15, 2008) ............................................................ 10

9 Balistreri v. Pacifica Police Dep’t, 901 F.2d 696 (9th Cir. 1990) ...................................................................................................... 5
10 Bell Atl. Corp. v. Twombly,
11 550 U.S. 544 (2007).................................................................................................................... 5

12 Brennan v. Midwestern United Life Insurance Co., 450 F.2d 999 (7th Cir. 1971) ............................................................................................. passim
13 Cornn v. UPS,
14 2006 W.L. 2642540 (N.D. Cal., Sept. 14, 2006) ........................................................................ 8

15 Cox v. American Cast Iron Pipe Co., 784 F.2d 1546 (11th Cir. 1986) .......................................................................................... 11, 14
16 Dellums v. Powell,
17 566 F.2d 167 (D.C. Cir. 1977) .................................................................................................... 8

18 Easten & Co. v. Mutual Benefit Life, 1994 U.S. Dist. Lexis 12308 (D. N.J. May 18, 1994) ................................................................ 9
19 Epstein v. MCA, Inc., 20 50 F.3d 644 ................................................................................................................................. 6

21 Estrada v. RPS, Inc., 125 Cal.App.4th 976 (2005) ..................................................................................................... 10
22 Fjelstad v. American Honda Motor Co., Inc., 23 762 F.2d 1334 (9th Cir. 1985) .................................................................................................. 13

24

Kern ex rel. Estate of Kern v. Siemens Corp., 393 F.3d 120 (2d Cir. 2004) ....................................................................................................... 7

25 Kline v. First Western Government, 26 1996 WL 122717 (E.D.Pa. March 11, 1996).............................................................................. 7

27

M. Berenson Co., Inc. v. Faneuil Marketplace, Inc., 103 F.R.D. 635 (D. Mass. 1984)........................................................................................... 9, 10

28

-iiiPlaintiffs’ Opp. to Defendant’s Motion to Dismiss Claims of Class Members Who Failed to Respond to Discovery

Case3:07-cv-02050-SC Document268 Filed01/17/11 Page4 of 23

SCOTT COLE & ASSOCIATES, APC
ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR
OAKLAND, CA 94612 TEL: (510) 891-9800

Matsushita Elec. Indus. Co., Ltd. v. Epstein,

1

516 U.S. 367 (1996).................................................................................................................... 6

2 McPhail v. First Command Financial Planning, Inc.,

3

2008 WL 2167198 (S.D.Cal. April 3, 2008) ........................................................................ 7, 16

Morgan v. Family Dollar Stores, Inc.,

4

551 F.3d 1233 (11th Cir. 2008) ................................................................................................ 14

5 Phillips Petroleum Co. v. Shutts,

6

472 U.S. 797 (1985).................................................................................................................... 6

Stirman v. Exxon Corp.,

7

280 F.3d 554 (5th Cir. 2002) ...................................................................................................... 5

8 Tierno v. Rite Aid Corp.,
2008 U.S. Dist. LEXIS 112461 (N.D. Cal. July 8, 2008)..................................................... 7, 15 9
Transamerican Refining Corp. v. Dravo Corp., 10 139 F.R.D. 619 (SD Tex. 1991).................................................................................................. 8

11 U.S. v. Trucking Emp., Inc., 72 F.R.D. 101 (D. DC 1976)....................................................................................................... 9
12 United States v. Kahaluu Const.,
13 857 F.2d 600 (9th Cir. 1988) .................................................................................................... 13

14 Wainwright v. Kraftco Corp., 54 F.R.D. 532 (N. D. Ga. 1972)................................................................................................ 12
15 Wanderer v. Johnston,
16 910 F.2d 652 (9th Cir. 1990) .................................................................................................... 13

17 Wyle v. R.J. Reynolds Industries, Inc., 709 F.2d 585 (9th Cir. 1983) .................................................................................................... 13
18 Federal Statutes
19 15 U.S.C.A. § 78j.......................................................................................................................... 12

20 29 U.S.C.A. § 216(b) .................................................................................................................... 11
21 17 CFR § 240.10b-5...................................................................................................................... 12 Fed. R. Civ. P. 12 ............................................................................................................................ 5
22 Fed. R. Civ. P. 23 ............................................................................................................ 2, 7, 11, 17
23 Fed. R. Civ. P. 26 ............................................................................................................................ 5
24 Fed. R. Civ. P. 30 .................................................................................................................. 5, 6, 16

25 Fed. R. Civ. P. 31 ........................................................................................................................ 5, 6

26 Fed. R. Civ. P. 33 .................................................................................................................... 10, 12

27 Fed. R. Civ. P. 34 .................................................................................................................... 10, 12 28 Fed. R. Civ. P. 35 ............................................................................................................................ 5

-ivPlaintiffs’ Opp. to Defendant’s Motion to Dismiss Claims of Class Members Who Failed to Respond to Discovery

SCOTT COLE & ASSOCIATES, APC
ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR
OAKLAND, CA 94612 TEL: (510) 891-9800

Case3:07-cv-02050-SC Document268 Filed01/17/11 Page5 of 23
Fed. R. Civ. P. 37 .................................................................................................................... 5, 6, 7 1 2 Newberg 3 5 Newberg § 16:3 .......................................................................................................................... 11 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
-vPlaintiffs’ Opp. to Defendant’s Motion to Dismiss Claims of Class Members Who Failed to Respond to Discovery

Case3:07-cv-02050-SC Document268 Filed01/17/11 Page6 of 23

SCOTT COLE & ASSOCIATES, APC
ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR
OAKLAND, CA 94612 TEL: (510) 891-9800

1 I. INTRODUCTION

2

Plaintiffs Miguel A. Cruz, John D. Hansen, and Robert Runnings (“Plaintiffs”) hereby submit

3 their Opposition to Defendant Dollar Tree Stores, Inc’s. (“Dollar Tree” and/or “Defendant”) Motion

4 to Dismiss Claims of Class Members Who Failed to Respond to Defendant’s Discovery (the 5 “MTD”).1 Plaintiffs’ Opposition is based on this Memorandum of Points and Authorities, the

6 Declaration of Molly A. DeSario, Esq. in support of Plaintiffs’ Opposition to Defendant's MTD and

7 exhibits thereto, filed herewith, (“DeSario Decl.”), the complete files and records of this action, and

8 argument that counsel may present at the hearing on the instant Motion.

9

Defendant contends that absent class members who have not yet responded to its discovery

10 requests (the “pertinent class members”) should be dismissed from the class. However, the legal

11 authorities and factual bases set forth in the MTD pertain only to discovery issues and do not meet

12 any standard for dismissal. Moreover, the great weight of legal authority rejects the imposition of 13 terminating sanctions against non-parties’ claims.2 Even if that were not so, Dollar Tree has not

14 shown that class counsel or any of the pertinent class members have willfully disregarded this

15 Court’s Orders or done so in bad faith. Finally, and most importantly, there is no practical reason to

16 dismiss these class members now. This Court has already said that this case is going to be tried with 17 testimony from a “handful” of class member witnesses3 -- a decision which effectively eliminates the

18 need for individual discovery responses from all but those “handful” of class members. Moreover,

19 Plaintiffs have already agreed that the “handful” of class members should be required to submit

20 complete discovery responses. That “handful,” however, has yet to be selected. Therefore, the

21 question of whether any class members should be dismissed for failure to respond to discovery is

22 premature. Dismissing more than a hundred class members from the case when only five out of 273

23

24

25 1

Dckt. No. 259, et seq. Unless otherwise indicated, all citations to the docket refer to the

26 record in the instant matter of Runnings, et al. v. Dollar Tree Stores, Inc., Case No. C-07-4012 SC

(“Runnings”). Citations to the “Cruz Dckt.” refer to the record in the related matter of Cruz, et al. v.

27

Dollar Tree Stores, Inc., Case No. C-07-02050 SC (“Cruz”).

2

Even if this were not the case, no Court has issued any order compelling any particular absent

28 class member to respond to the disputed discovery so the MTD should be denied on this basis alone.

3

Cruz Dckt. No. 232 at 21:19-27, fn. 5.

-1-

Plaintiffs’ Opp. to Defendant’s Motion to Dismiss Claims of Class Members Who Failed to Respond to Discovery

Case3:07-cv-02050-SC Document268 Filed01/17/11 Page7 of 23

SCOTT COLE & ASSOCIATES, APC
ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR
OAKLAND, CA 94612 TEL: (510) 891-9800

1 of them will testify at trial not only goes against the weight of the case law, but also turns Rule 23

2 jurisprudence on its head by improperly turning this into an “opt-in” case.

3

Accordingly, this Court should deny Dollar Tree’s MTD in its entirety, or, alternatively,

4 continue the hearing thereon until after the selection of the “handful” of representative class member

5 witnesses.

6

7 II. STATEMENT OF FACTS

8

On March 25, 2010, Defendant served written discovery requests on class counsel to

9 propound on each of the then 700-plus class members (the “class discovery requests”).4 Plaintiffs

10 objected,5 and the parties submitted a joint letter brief to Judge Spero when the parties meet and

11 confer efforts failed.6 On March 25, 2010, this Court authorized Dollar Tree to propound written

12 discovery requests on the then 700+ absent class members.7 In the May 28, 2010 Joint Letter Brief to

13 Judge Spero, Defendant argued that “responses to the Class Member Discovery Requests are

14 necessary and relevant to Dollar Tree’s argument that this case is not amenable to class treatment or

15 that it cannot be tried through representational testimony [and] …should therefore be completed 16 before Judge Conti rules upon Dollar Tree’s Motion to Decertify the Class.”8

17

After the parties resolved various disputes regarding Plaintiffs’ objections – many of which

18 were sustained – at the June 9, 2010 telephonic hearing before Judge Spero,9 class counsel served the

19 class discovery requests on each and every class member at the addresses provided by Dollar 20 Tree.10 Class counsel also hired temporary staffers and externs to contact the class members by

21

22 4
5
23 6

See Cruz Dckt. No. 260 at Exhibits “C” and “D.” See Cruz Dckt. No. 260 at Exhibits “E” and “F.” Cruz Dckt. No. 178 (Joint Letter Brief to Compel Class Discovery Requests dated May 28,

24 2010).

7

Dckt No. 208 (Order after Case Management Conference) at 1:8-10 (“[d]efendant shall serve

25 10 Special Interrogatories and 10 Requests for the Production of Documents on Class Members.

Written discovery shall be served through Class Counsel. Class Counsel preserves all rights to object

26 to such discovery on any grounds”).

8

Cruz Dckt. No. 178 at 4.

27 9

Cruz Dckt. No. 183.

10 Declaration of Molly A. DeSario, Esq. in support of Plaintiffs’ Memorandum in Opposition

28 to Defendant Dollar Tree Stores, Inc.’s Motion to Dismiss Claims of Class Members Who Failed to

Respond to Defendant’s Discovery (“DeSario Decl.”) at ¶¶ 3-6, filed herewith.

-2-

Plaintiffs’ Opp. to Defendant’s Motion to Dismiss Claims of Class Members Who Failed to Respond to Discovery

Case3:07-cv-02050-SC Document268 Filed01/17/11 Page8 of 23

SCOTT COLE & ASSOCIATES, APC
ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR
OAKLAND, CA 94612 TEL: (510) 891-9800

1 telephone, and used online database, social networking websites and word-of-mouth resources to 2 locate the significant number of class members whose contact information was outdated.11 Class 3 counsel repeated this process twice following this Court’s Decertification Order.12 Class counsel 4 personally served the class members’ discovery responses on defense counsel on July 16, 2010.13

5 Class counsel subsequently served additional class member discovery responses on Defendant on a 6 rolling basis.14, 15

7

In the parties’ September 27, 2010 Joint Letter Brief to Judge Spero, Defendant stated that it

8 would seek terminating sanctions (i.e., dismissal) against those class members who had not yet 9 responded to the class discovery requests.16 Judge Spero did not levy terminating sanctions during

10 the October 14, 2010 telephonic discovery hearing and did not reach the merits of any such request 11 for dismissal.17 Contrary to Defendant’s characterization of the events,18 Judge Spero did not state

12 “that [the class members’] claims would be dismissed if they did not respond to the discovery by

13 October 29, 2010.” The Court merely ordered that class counsel send notice informing the class

14

15 11
12
16 13

DeSario Decl. at ¶ 6. Cruz Dckt. No. 232.
Cruz Dckt. No. 318 at Ex. A.

14
17 15

Cruz Dckt. No. 318 at ¶ 4. Indeed, Plaintiffs’ counsel affected personal service of class member Claudia Garcia’s

18 verified responses to Defendant’s class discovery requests today. See Ex. A to the DeSario Decl. Accordingly, Plaintiffs respectfully request that this Court summarily deny the MTD with respect to

19

Ms. Garcia as moot. 16 Cruz Dckt. No. 233.

20 17 Cruz Dckt. No. 247. The Civil Minute Order regarding Joint Letter Brief merely ordered class

counsel to send notice to class members that Defendant would seek the relief requested in the instant 21 MTD.

18
22

See MTD at 8:14-17. (Defendant wrote that “Judge Spero issued an order that a final warning

notice would be sent to all Class Members who had not responded to Class Discovery Requests

23 advising them that their claims would be dismissed if they did not respond to the discovery by

24

October 29, 2010”) (emphasis added). The MTD incorrectly characterized Defendant’s evidentiary support for this statement; i.e.,

25 paragraph eleven of the Declaration of Matthew Vandall in Support of Defendant Dollar Tree Stores,

Inc.’s Motion to Dismiss Claims of Class Members Who Failed to Respond to Defendant’s 26 Discovery (“Vandall Decl.”). Dckt. No. 260. In reality, that declaration does not contain any such

27

statement and says only that “On October 14, 2010 Magistrate Judge Spero heard Defendants’ motion for an Order that a warning letter be sent to all Class Members who had not responded to the

28 Class Discovery Requests. Judge Spero ordered that a warning letter be mailed to all Class members

who had not responded to the discovery.” Dckt. No. 260 at 7:10.

-3-

Plaintiffs’ Opp. to Defendant’s Motion to Dismiss Claims of Class Members Who Failed to Respond to Discovery

Case3:07-cv-02050-SC Document268 Filed01/17/11 Page9 of 23

SCOTT COLE & ASSOCIATES, APC
ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR
OAKLAND, CA 94612 TEL: (510) 891-9800

1 members that Defendant would seek dismissal.19 Notably, this is the second time defense counsel 2 misrepresented the record to the Court regarding this precise issue.20 Contrary to Defendant’s

3 accusatory characterization, class counsel has not “disobeyed” any of this Court’s Orders and in fact 4 has expended considerable resources to locate the pertinent class members.21

5

On September 9, 2010, the Court has stated that it “is not opposed, in principle, to the parties’

6 use of representative testimony … [and] does not anticipate allowing each side to call more than a 7 handful of SMs as witnesses as part of the liability phase of the trial” (emphasis added).22 In

8 response to the Court’s anticipated trial plan, and Dollar Tree’s concerns regarding its ability to

9 impeach class member witnesses, Plaintiffs committed to providing full discovery for each testifying 10 class member.23 Nevertheless, Dollar Tree filed the instant MTD on December 23, 2010 arguing that

11 it needs discovery responses from every single class member or it will suffer undue prejudice at 12 trial.24 Until Dollar Tree furnished the class list to Plaintiffs in November 2009, it had unilateral 13 access to all but 100 of the class members for nearly two years.25

14

15

16

17

18 19

Cruz Dckt. No. 247 (“Plaintiff shall send out a written notice on 10/18/10 to class members

19 who have not responded to discovery indicating … that Defendants have sought dismissal on the

basis that they have not responded”) (emphasis added). 20 20 See, e.g., Dckt. No. 317 at 2:20-26, fn. 10 (citing Dckt. Nos. 300 at 9:14-17 and 301 at 2:9-

21

11) and fn. 11 (citing Cruz Dckt. No. 247). 21 Cruz Dckt. No. 232 (Decertification Order) at 21:19-27, fn. 5.

22
22

Cruz Dckt. No. at 21:19-27, fn. 5 (Order Granting in Part and Denying in Part Defendant’s

Motion to Decertify).

23 23 Dckt. No. 317 at 3:1-2 (Plaintiffs’ Opposition to Defendant’s first Motion to Dismiss the

24

pertinent class members); see also Cruz Dckt. No. 142 at 8:20-9:30 (Plaintiffs’ section of the February 25, 2010 Joint Case Management Statement).

25 24 See MTD at §II(B) (Defendant Has and Will Suffer Prejudice if The Relief Requested is Not

Granted).

26 25 Cruz Dckt. No. 76 (Order Granting in Part and Denying in Part Motion to Compel Responses

27

to Plaintiffs’ Special Interrogatory No. 1, in which Judge Spero Ordered Dollar Tree to produce the names and mailing addresses – but not telephone numbers – for 100 of the then approximately 655

28 putative class members); see also Dckt. No. 87 (overruling Plaintiff Robert Runnings’ Objection to

Judge Spero’s Order declining to compel production of most class members’ contact information).

-4-

Plaintiffs’ Opp. to Defendant’s Motion to Dismiss Claims of Class Members Who Failed to Respond to Discovery

Case3:07-cv-02050-SC Document268 Filed01/17/11 Page10 of 23

SCOTT COLE & ASSOCIATES, APC
ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR
OAKLAND, CA 94612 TEL: (510) 891-9800

III. LEGAL ARGUMENT 1

2

A. DEFENDANT’S MOTION TO DISMISS IS PROCEDURALLY IMPROPER

1. The MTD Does Not Comply with the Requirements Set Forth in Federal

3

Rule of Civil Procedure 12(b)(6)

4

The proper legal standard for Defendant’s MTD differs substantially from that governing a

5 motion for sanctions under Federal Rule of Civil Procedure 37. As such, this Court -- if it even

6 reaches the merits of the MTD -- should apply the correct legal standard therefor. Federal Rule of

7 Civil Procedure 12(b)(6) requires dismissal if a complaint lacks sufficient facts to support the alleged

8 claim or fails to assert a cognizable theory. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699

9 (9th Cir. 1990); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007) (a motion to dismiss should be

10 granted if a plaintiff fails to allege “enough facts to state a claim to relief that is plausible on its

11 face”). None of Defendant’s arguments in the MTD are remotely related to this standard, so there is

12 no legal basis for granting it. For all intents and purposes, the MTD merely seeks terminating

13 sanctions. Defendant’s MTD relies heavily on Rule 37 jurisprudence, which does nothing to advance

14 its position that the relevant CMs’ claims should be “dismissed.” A motion to dismiss “must be

15 made before pleading if a responsive pleading is allowed.” Fed. R. Civ. P. 12(b). As the pleading

16 stage of this matter concluded long ago, any motion to dismiss should be denied as untimely. Thus,

17 Defendant’s MTD should fail on this basis alone.

18

2. Dismissal is Not an Appropriate Sanction Because Absent Class

19

Members are Not Parties

20

Defendant asks this Court to extend a doctrine that allows dismissal of parties who willfully

21 refuse to provide discovery responses to absent class members. Terminating sanctions -- such as

22 dismissal -- are only available to named parties who fail to obey a discovery order, and absent class

23 members are not “parties” in the class action context. FRCP Rule 37(b)(2)(A)(v) does not apply to

24 absent class members; it only authorizes dismissal “[i]f a party or a party’s officer, director, or

25 managing agent --or a witness designated under Rule 30(b)(6) or 31(a)(4) -- fails to obey an order to

26 provide or permit discovery, including an order under Rule 26(f), 35, or 37(a).” Fed. R. Civ. P.

27 37(b)(2)(A). See, e.g., Stirman v. Exxon Corp., 280 F.3d 554, 563, fn. 7 (5th Cir. 2002) (absent class

28 members are “by definition those people [who] do not and cannot participate in any stipulations

-5Plaintiffs’ Opp. to Defendant’s Motion to Dismiss Claims of Class Members Who Failed to Respond to Discovery

Case3:07-cv-02050-SC Document268 Filed01/17/11 Page11 of 23

SCOTT COLE & ASSOCIATES, APC
ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR
OAKLAND, CA 94612 TEL: (510) 891-9800

1 concocted by the named parties”); see also Epstein v. MCA, Inc., 50 F.3d 644, 667 overruled on

2 other grounds by Matsushita Elec. Indus. Co., Ltd. v. Epstein, 516 U.S. 367 (1996) (noting that

3 “class members [are] unlike individual litigants”). Even after class certification, “an absent class-

4 action plaintiff is not required to do anything.” Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 810

5 (1985).

6

Here, none of the pertinent class members is “a party,” “a party’s officer, director or

7 managing agent -- or a witness designated under Rule 30(b)(6) or 31(a)(4).” Fed. R. Civ. P.

8 37(b)(2)(A). These class members are passive participants in a certified class action. As such, they

9 do not fall into any category of individuals (i.e., “parties”) contemplated under this rule. Since the

10 pertinent class members are not “parties” to this class action, they cannot be dismissed because they

11 failed to provide discovery responses.

12

3. There Is No Evidence that the Pertinent Class Members Have

13

Disobeyed any Discovery Order

14

Dismissal is also inappropriate because there is no evidence that the pertinent class members

15 have disobeyed any discovery order. Defendant relies primarily on the controversial opinion issued

16 in Brennan v. Midwestern United Life Insurance Co., 450 F.2d 999 (7th Cir. 1971), however, is

17 distinguishable for myriad reasons, discussed infra at Section III(B)(4). Significantly, the Brennan

18 Court expressly ordered each of the class members to respond to the class discovery requests, and

19 there was no question that those class members had received actual notice – including a copy of the

20 Court’s order. See id. at 1005; see also Section III(B)(4), infra. Here, the Court merely ordered class

21 counsel to send a notice to the pertinent class members stating that they would be dismissed from the

22 class if they did not respond. See Dckt. No. 348 at ¶ 4. The gravity of a class member receiving a

23 Court Order with his or her name on its face (as was the case in Brennan) would obviously have a

24 greater impact than a generalized warning notice from class counsel, if in fact the class members

25 actually received the Order.

26

This Court has not ordered any of the pertinent class members to respond to the class

27 discovery requests. Indeed, this Court and Judge Spero have merely ordered class counsel to serve as

28 a liaison for the requests, and class counsel has dutifully complied with every aspect of each Order.

-6Plaintiffs’ Opp. to Defendant’s Motion to Dismiss Claims of Class Members Who Failed to Respond to Discovery

Case3:07-cv-02050-SC Document268 Filed01/17/11 Page12 of 23

SCOTT COLE & ASSOCIATES, APC
ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR
OAKLAND, CA 94612 TEL: (510) 891-9800

1 See, generally, Section II, supra. None of the absent class members, however, have been ordered to

2 provide responses to the class discovery requests. Since FRCP Rule 37(b)(2)(A)(v) is only available

3 where the subject of the implicated discovery “fails to obey an order to provide or permit

4 discovery,” dismissal under that rule is not a viable remedy. Simply put, where, as here, a person is

5 not the subject of an order, that person cannot logically be sanctioned for disobeying it. Defendant’s

6 MTD should therefore be denied on the basis that the pertinent class members have not actually been

7 ordered to do anything.

8

4. Defendant’s MTD Improperly Asks this Court to Impose a de facto

9

“Opt In” Scheme

10

Dollar Tree’s MTD improperly asks this Court to ignore Rule 23’s “opt out” provision and

11 treat this case as a FLSA “opt in” class action. As the Kline Court so clearly explained:

12

“In some of the cases where discovery of absent class members was permitted, when

absent class members failed to comply with discovery requests, the defendants filed

13

motions to have those class members dismissed from the case under Federal Rule of

Civil Procedure 37. This strategy is essentially a ‘back door’ way to create an ‘opt in’

14

scheme, where class members are required to take some affirmative step in order to

remain in the class. This is inconsistent with the ‘opt out’ provision of Rule 23.”

15

16 Kline v. First Western Government, 1996 WL 122717, *2 (E.D.Pa., March 11, 1996).

17

Other courts have agreed. See Kern ex rel. Estate of Kern v. Siemens Corp., 393 F.3d 120,

18 125-26 (2d Cir. 2004)

19

(“Dismissal of an absent class member’s claims as sanctions for failure to answer a

20 questionnaire is contrary to the opt-out policy of Rule 23.”). See also Tierno v. Rite Aid Corp., 2008

21 U.S. Dist. LEXIS 112461 (N.D. Cal. July 8, 2008) (“requiring [absent class members] to respond [to

22 discovery] would undercut the purposes of class certification and effectively create an “opt in”

23 scheme for absent plaintiffs.”) (citing McPhail v. First Command Financial Planning, Inc., 251

24 F.R.D. 514, 2008 WL 2167198, 2 (S.D.Cal. April 3, 2008)).

25

Since this case is a Rule 23 class action and therefore subject to Rule 23’s “opt out”

26 provision, this Court should not dismiss absent class members who have not responded to Dollar

27 Tree’s individual discovery requests, or, in the alternative, continue the hearing thereon until after it

28 selects the “handful” of representative class member witnesses.

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Case3:07-cv-02050-SC Document268 Filed01/17/11 Page13 of 23

SCOTT COLE & ASSOCIATES, APC
ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR
OAKLAND, CA 94612 TEL: (510) 891-9800

1

B. COURTS DO NOT ISSUE TERMINATING SANCTIONS AGAINST

UNREACHABLE ABSENT CLASS MEMBERS IN RULE 23 CLASS

2

ACTIONS FOR DISCOVERY LAPSES

3

1. Dollar Tree’s References to Cases Where Absent Class Member

4

Discovery was Permitted Do Not Support its Request for Sanctions

5

Defendant cites myriad cases where, as here, absent class member discovery was permitted.

6 However, none of the “[o]ther Courts [that] have permitted interrogatories to be sent to unnamed 7 class members”26 were issued by the Ninth Circuit,27 and none imposed terminating sanctions (or

8 any sanctions) for failure to respond. Moreover, each of these decisions is factually distinguishable:

9

• Transamerican Refining Corp. v. Dravo Corp., 139 F.R.D. 619, 622 (SD Tex. 1991):

10

Unlike Dollar Tree’s request to take written discovery from the entire class, the

11 Transamerican Refining Court only permitted discovery from a small fraction of the class members

12 and did not impose sanctions on those who did not provide them. See, id. (allowing discovery on

13 only 0.83% of absent class members on the basis that “[i]t is unduly burdensome to propound

14 interrogatories” to the entire class). Id. Here, Dollar Tree has already received verified responses

15 from the majority (161 out of 273, or almost 70%) of absent class members.

16

• Dellums v. Powell, 566 F.2d 167, 187 (D.C. Cir. 1977):

17

The Dellums Court noted that limited discovery from absentees is only permissible “when the

18 interrogatories or document requests are tendered in good faith and are not unduly burdensome, and

19 when the information is not available from the representative parties.”Id. It said nothing about

20 imposing sanctions on absent class members who failed to respond to discovery. Furthermore,

21 Dollar Tree’s MTD does not make any showing that the discovery sought here is unavailable

22 through other, less intrusive means, nor could it. Indeed, as explained above, Dollar Tree had

23 unilateral access to the vast majority of class members prior to class certification. Its failure to

24

25 26 27

See MTD at 16:7-27. Contrary to Defendant’s representation that the Cornn Court “approv[ed] sending of

26 interrogatories to absent class members” (see MTD at 16:12-13), the Cornn Court noted that the

27

defendant was required “to justify requesting discovery from a particular number of absent class members” (see id. at *4) and by no means authorized or implied that every single absent class

28 member should be required to submit to written discovery much less be subjected to sanctions.

Cornn v. UPS, Case No. No. C03-2001 TEH, 2006 W.L. 2642540 (N.D. Cal., Sept. 14, 2006).

-8-

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Case3:07-cv-02050-SC Document268 Filed01/17/11 Page14 of 23

SCOTT COLE & ASSOCIATES, APC
ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR
OAKLAND, CA 94612 TEL: (510) 891-9800

1 adequately investigate the liability issues of their claims through informal interviews and/or surveys

2 early in the ligation does not justify burdening the relevant class members with discovery and

3 discovery sanctions after the discovery cut-off date.

4

• U.S. v. Trucking Emp., Inc., 72 F.R.D. 101 (D. DC 1976):

5

The Trucking Emp., Inc. Court allowed the plaintiff to propound limited discovery on absent

6 members of an uncertified defendant class. 72 F.R.D. 101 (D. DC 1976). Significantly, the Trucking

7 Emp., Inc. Court observed that “[t]he most important relevant circumstances are that the party

8 seeking the discovery must demonstrate … that the discovery not be undertaken with the purpose or

9 effect of … altering the membership of the opposing class.” 72 F.R.D. at 104 (emphasis added). The

10 Trucking Emp., Inc. Court never said anything about absent class members providing

11 discovery or being subject to sanctions for not providing it. Furthermore, the remedy Defendant’s

12 MTD seeks here is nothing short of an order that would literally alter the membership of the class

13 by dismissing absentee class members prior to their day in court.

14

• Easten & Co. v. Mutual Benefit Life, 1994 U.S. Dist. Lexis 12308 (D. N.J., May 18, 1994):

15

The Easten & Co. Court expressed disfavor of dismissal as a remedy where absent class

16 members (in that case, aggrieved investors, not employees) do not respond to discovery. In fact,

17 the Easten & Co. Court expressly ordered “that defendants re-draft the discovery requests to exclude

18 the warnings regarding dismissal” “as a precaution against unnecessary intimidation of class

19 members.” Id. at *15 (emphasis added).

20

• M. Berenson Co., Inc. v. Faneuil Marketplace, Inc., 103 F.R.D. 635 (D. Mass. 1984):

21

Unlike the instant payroll dispute between a nationwide retail chain and its store level

22 employees, M. Berenson Co., Inc. was a class action against a commercial landlord on behalf of

23 commercial tenants where the defendant asserted counterclaims against certain unnamed class

24 members. These counterclaims necessarily made each absentee class member a potential party (and

25 therefore subject to discovery) because the “factual bases of many of their counterclaims are so

26 interwoven with those of plaintiffs’ claims that they cannot be independently submitted to a jury

27 without confusion and uncertainty.” Id. at 637. Partially on this basis, the M. Berenson Co., Inc.

28 Court found that limited class member discovery was permissible notwithstanding the well settled

-9Plaintiffs’ Opp. to Defendant’s Motion to Dismiss Claims of Class Members Who Failed to Respond to Discovery

Case3:07-cv-02050-SC Document268 Filed01/17/11 Page15 of 23

SCOTT COLE & ASSOCIATES, APC
ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR
OAKLAND, CA 94612 TEL: (510) 891-9800

1 principle that “discovery against absentee class members under Rules 33 and 34 cannot be had

2 as a matter of course.” Id. Here, Dollar Tree has not asserted any counterclaims against the

3 pertinent class members. Moreover, the class members here are Defendant’s employees rather than

4 its retail tenants. Thus, the facts in M. Berenson Co., Inc. are sufficiently incongruous from those in

5 the instant matter that it is wholly inapposite.

6

Since none of these cases address the propriety of imposing terminating sanctions on absent

7 class members, Dollar Tree’s MTD should be denied, or, alternatively, this Court should continue

8 the hearing thereon until after selection of the “handful” of representative class member witnesses.

9

2. The Cases Defendant Cites Where Absent Class Members Were

10

Dismissed are Inapposite

11

The cases Dollar Tree cites that permitted dismissal of absent class members are wholly

12 inapposite here:

13

• Estrada v. RPS, Inc., 125 Cal.App.4th 976 (2005):

14

In Estrada v. RPS, Inc., 125 Cal.App.4th 976 (2005), the trial Court chose to dismiss class

15 members who did not respond to a survey asking one binary question (i.e., whether the class

16 member drove a truck or not) after amending the class definition to exclude individuals who did not

17 drive a truck. The Court explained that dismissal was warranted there since the Defendant had “no

18 records confirming which contractors actually drove a truck” and the Court had certified a class

19 consisting of “an admittedly over-inclusive group.” Id. at 979. Here, there is no question as to the

20 composition of the class.

21

• Aquilino v. Home Depot U.S.A., Inc., 2008 U.S. Dist. LEXIS 30819 (D. N.J. 2008):

22

In Aquilino v. Home Depot U.S.A., Inc., 2008 U.S. Dist. LEXIS 30819 (D. N.J. Apr. 15,

23 2008), a FLSA case, the Court elected to dismiss certain absent class members since “unlike the

24 typical class action, a FLSA action requires that each employee consent in writing in order to be part

25 of the suit.” Id. at *7. Under the FLSA, “[n]o employee shall be a party plaintiff to any such action

26 unless he gives his consent in writing to become such a party and such consent is filed in the court in

27 which such action is brought.” 29 U.S.C.A. § 216(b). As explained above, (Section III(A)(4), supra),

28

-10Plaintiffs’ Opp. to Defendant’s Motion to Dismiss Claims of Class Members Who Failed to Respond to Discovery

Case3:07-cv-02050-SC Document268 Filed01/17/11 Page16 of 23

SCOTT COLE & ASSOCIATES, APC
ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR
OAKLAND, CA 94612 TEL: (510) 891-9800

1 the class members in the instant matter are not opt-in FLSA plaintiffs, but are instead members of a

2 certified opt-out class under Rule 23.

3

• Anderson v. Cagle’s, Inc., 488 F.3d 945 (11th Cir. 2007):

4

Dollar Tree also references Anderson v. Cagle’s, Inc., which is also not a Rule 23 class

5 action. That Court similarly acknowledged that “[u]nlike class actions governed by Rule 23 of the

6 Federal Rules of Civil Procedure, in which potential class members may choose to opt out of the

7 action, FLSA collective actions require potential class members to notify the court of their desire to

8 opt in to the action.” Anderson, 488 F.3d at 950, fn. 3 (11th Cir. 2007).

9

Since none of these cases address factual circumstances that are remotely analogous to those

10 presented here, Dollar Tree’s MTD should be denied.

11 3. The Majority of Courts Have Declined to Follow Brennan
12

13

The only case that Dollar Tree can offer to support its MTD is Brennan which contradicts the

14 weight of more recent authority, particularly within this circuit, disfavoring dispositive discovery

15 sanctions against absent non-responsive class members. The Brennan remedy is the exception, not

16 the rule. Indeed, myriad subsequent opinions have outright disagreed with Brennan or distinguished

17 it on factual bases similar to those present in the instant case.

18

“The limited holding in Brennan is cited often, but it has received uneven application.” 5

19 Newberg § 16:3. In fact, a majority of courts have declined to adopt the Brennan Court’s all-or-

20 nothing approach to compelling discovery from absent class members. This is predictable since “[a]

21 Rule 23 class action is intended to be prosecuted by a class representative without the necessity of

22 absent class members taking an active role in the litigation. The class action rule was designed to

23 protect the class member from this burden.” 5 Newberg 16:4. In the employment context, the Cox v.

24 American Cast Iron Pipe Co. Court noted that class-wide “interrogatories were improperly used as a

25 strategy to reduce class size. Their ‘necessity’ is further questionable since, as appellants point out,

26 they were used in stage one proceedings in which the focus is the broad pattern and practice at issue,

27 not the merits of individual claims.” 784 F.2d 1546, 1556 (11th Cir. 1986) (citing International

28 Broth. of Teamsters v. U.S., 431 U.S. 324 36-62 (1977). The Cox Court also observed that Brennan

-11Plaintiffs’ Opp. to Defendant’s Motion to Dismiss Claims of Class Members Who Failed to Respond to Discovery

Case3:07-cv-02050-SC Document268 Filed01/17/11 Page17 of 23

SCOTT COLE & ASSOCIATES, APC
ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR
OAKLAND, CA 94612 TEL: (510) 891-9800

1 “has not met with wide acceptance in this Circuit.” Cox, supra. (citing Wainwright v. Kraftco Corp.,

2 54 F.R.D. 532, 534 (N. D. Ga. 1972) (“[s]ince discovery by written interrogatories pursuant to Rule

3 33 … and by … production of documents pursuant to Rule 34 may be had only against ‘parties,’ the

4 court does not believe such discovery may be had from the class members in this action, other than

5 the … party-plaintiffs”)). Wainwright expressly rejects the use of individual class member discovery

6 to reduce the size of a plaintiff class, noting that it “perceives serious constitutional problems with a

7 decision that would dismiss with prejudice from a lawsuit people who were never made parties.”

8 Wainwright, 54 F.R.D. at 534 (emphasis added).

9

4. The Facts in Brennan are Inapposite Here

10

The Brennan opinion -- which notes that the “discovery orders here were made in a

11 somewhat unusual setting” (see id. at 1003) -- is predicated upon a very different set of facts than

12 those before this Court.

13

• The issues in this matter differ from those in Brennan:

14

Brennan was a securities class action alleging that the Midwestern United Life Ins. Co. had

15 violated section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5 under the theory that

16 one of its agents had allegedly engaged in fraudulent conduct. See Brennan at 1001. This litigation,

17 however, is a certified employment class action where no individual demonstration of reliance is

18 required to establish liability; i.e., Defendant bears the burden of proof with respect to its affirmative

19 defense under the executive exemption, an inquiry which this Court has already determined is

20 amenable to common evidence and can be adjudicated through testimony from a “handful” of class

21 members.

• Unlike the pertinent class members in the instant case, the Brennan class members

22

were ordered to respond:

23

The Brennan trial court “ordered the unresponsive members of the class … to show cause …

24 why their claims should not be dismissed with prejudice for failure to answer the interrogatories.” Id.

25 at 1002. Toward that end, “counsel for the named plaintiff mailed to each class member, including

26 movants, copies of the January 4 order, the order to produce documents, and the agreed-upon

27 interrogatories.” Id. By contrast, as explained in Section III(A)(3) supra, the pertinent class members

28 here have not been ordered to do anything.

-12Plaintiffs’ Opp. to Defendant’s Motion to Dismiss Claims of Class Members Who Failed to Respond to Discovery

Case3:07-cv-02050-SC Document268 Filed01/17/11 Page18 of 23

SCOTT COLE & ASSOCIATES, APC
ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR
OAKLAND, CA 94612 TEL: (510) 891-9800

1

• The Brennan class members received actual notice:

2

The order dismissing members of the Brennan class issued only after each received actual

3 notice of the Order to Show Cause. See id. at 1005(“[i]t is not disputed that movants and those

4 similarly situated received actual notice of the show-cause order and counsel’s letter transmitting a

5 copy to them”). Here, Dollar Tree has not shown, and Plaintiffs do not concede, that any one of the

6 pertinent class members received actual notice. Indeed, despite class counsel’s reasonable and

7 diligent efforts, not every pertinent class member has been apprised of the class discovery requests.

8 As such, dismissal of their claims as requested in the MTD would violate their right to due process.

9

Since the Brennan remedy has been rejected by courts in this circuit and is based on

10 inapposite facts, the Court should reject Defendant's request to employ it here.

11

C. TERMINATING SANCTIONS ARE INAPPROPRIATE WHERE

12

DEFENDANT HAS NOT SHOWN WILLFUL OR BAD FAITH

DISREGARD 13

14

In general, dismissal is only authorized in “extreme circumstances” and only where the

15 violation is “due to willfulness, bad faith, or fault of the party.” United States v. Kahaluu Const.,

16 857 F.2d 600, 603 (9th Cir. 1988) (emphasis added) (quoting Fjelstad v. American Honda Motor

17 Co., Inc., 762 F.2d 1334, 1338 (9th Cir. 1985) and Wyle v. R.J. Reynolds Industries, Inc., 709 F.2d

18 585, 589 (9th Cir. 1983)); Allen v. Exxon Corp. (In re Exxon Valdez), 102 F.3d 429, 432 (9th Cir.

19 1996) (total refusal by appellants over a period of more than two years to comply with discovery

20 obligations and orders warranted dismissal) (emphasis added); Adriana Intern. Corp. v. Thoeren,

21 913 F.2d 1406, 1411-12 (9th Cir. 1990), cert denied sub nom.; Wanderer v. Johnston, 910 F.2d 652,

22 656 (9th Cir. 1990) (appellant’s total failure to respond to discovery and the time consumed by

23 attempting to secure compliance prejudiced appellees) (emphasis added).

24

Defendant’s MTD concedes, and the record confirms, that various good-faith efforts have

25 been made by class counsel to comply with the class discovery requests.28 Most recently, class

26

27 28

See, e.g., MTD at 7:27-28 (“[o]n July 16, 2010, Plaintiffs submitted verified responses on

28 behalf of 215 of the … Class Members”); 8:1-3 (“[i]n the following weeks, Plaintiffs submitted

verified responses for” additional class members).

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Case3:07-cv-02050-SC Document268 Filed01/17/11 Page19 of 23

SCOTT COLE & ASSOCIATES, APC
ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR
OAKLAND, CA 94612 TEL: (510) 891-9800

1 counsel sent (in strict compliance with this Court’s Order), a letter to the last known address of each 2 pertinent class member asking each to respond to Defendant’s discovery requests.29 Given all of

3 class counsel’s efforts to reach the class members, it is clear that class counsel has not acted in bad

4 faith or willful disregard of the discovery rules.

5

Nor has Dollar Tree shown that the absent class members have acted in bad faith or willful

6 disregard. Even if the pertinent class members were the subject of an order (which they are not) and

7 did not comply with that order, dismissal is an inappropriate sanction here. “The decision to dismiss

8 a claim, like the decision to enter a default judgment, ought to be a last resort -- ordered only if

9 noncompliance with discovery orders is due to willful or bad faith disregard for those orders.” Cox,

10 784 F.2d at 1556. For this reason, terminating sanctions are an inappropriate remedy where, as here,

11 Defendant has not shown that any of the pertinent class members have willfully disregarded this

12 Court’s Orders or done so in bad faith. Indeed, appellate courts “will find abuse of discretion if

13 lesser sanctions would suffice.” Id. To do so, Dollar Tree would have to show that each pertinent

14 class member actually received its discovery requests and chose to ignore them. Dollar Tree’s MTD

15 fails to even argue this point. Instead, Dollar Tree attempts to persuade this Court to take the drastic

16 action of dismissing the pertinent class members because lesser sanctions would be meaningless. See

17 MTD at 14:14-15 (“precluding the 112 non-responsive Plaintiffs from presenting evidence would be

18 a meaningless sanction”). Since this Court has already opined that this case will be tried through 19 representative testimony,30 however, lesser sanctions like precluding the pertinent class members

20

21

22 29 30

See DeSario Decl. at ¶ 9. This class action will be tried through representative testimony in the same manner as

23 Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233 (11th Cir. 2008), a closely analogous matter

where 1,424 purportedly exempt retail store managers successfully prosecuted and tried a nationwide

24 FLSA collective action against Dollar Tree’s direct competitor Family Dollar Stores. The Morgan

Court held that there “was legally sufficient evidence … to produce a reliable and just verdict” after

25 hearing trial testimony from seven of 1,424 store manager plaintiffs and 39 executives and district

managers, and reviewing corporate manuals, deposition testimony of 12 store managers, charts

26 summarizing wages and hours, emails, internal correspondence, payroll budgets and in-store

schematics. Id. at 1280. Here, Plaintiffs have already admitted onto the record over 1,500 pages of

27 documentary evidence (including numerous handbooks, operations manuals, internal company email

messages, budgets, payroll certification responses, and in-store schematics), the parties have already

28 deposed more than 50 Store Managers, and more than half of the (just 273) class members have

already provided written discovery responses.

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Case3:07-cv-02050-SC Document268 Filed01/17/11 Page20 of 23

SCOTT COLE & ASSOCIATES, APC
ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR
OAKLAND, CA 94612 TEL: (510) 891-9800

1 from offering representative trial testimony would be sufficient punishment. In other words, this

2 Court need not use a sledge hammer where a fly swatter will suffice.

3

Since this matter will be resolved through the use of representative testimony and other

4 common evidence, Defendant’s claims of prejudice if the pertinent class members remain passive

5 participants in this action fall flat.

6

D. DOLLAR TREE WILL NOT BE PREJUDICED IF THIS COURT DENIES

7

THE MTD

8

Defendant has not made any credible showing that it will be prejudiced without individual

9 class member discovery or that such discovery is necessary.31 Moreover, defendants’ claims of

10 undue prejudice from absent class members in the employment context is further diminished where,

11 as here, the class members’ identities are known to employers from the outset of litigation. See, e.g.,

12 Tierno, 2008 U.S. Dist. LEXIS 112461 at * 18 (denying Rite Aid Corp.’s request to depose absent

13 members of a certified class partially on the basis that it “had unfettered access to its own Store

14 Managers for nearly a year and a half while the class was being certified”). Defendant argues that it

15 “will have difficulty raising defenses to the individual claims of these Class Members without the

16 benefit of their responses to the Class Discovery Requests” which are also needed because they are

17 “relevant to two of Defendant’s experts and their trial testimony.” MTD at 10:18-20. Fortunately for

18 Dollar Tree, this Court has twice determined that common issues predominate, so Defendant need

19 not raise any defenses to the class members’ individual claims during the upcoming trial on class-

20 wide liability questions.

21

Dollar Tree also claims that it needs these responses to impeach Plaintiffs’ trial witnesses and

22 to determine which class members to call as adverse witnesses. MTD at 13:18-19. Since Plaintiffs

23 have already committed to providing full discovery for the class members who give representative 24 testimony at trial, however, this argument is moot.32

25

26

31 Defendant has also made the argument (which this Court twice rejected) that discovery from absent class members was necessary to support its Motion to Decertify the Class. See Cruz Dckt. No.

27

232 (September 9, 2010 Order Granting in Part and Denying in Part Defendant’s Motion to Decertify (the “Decertification Order”)).

28 32 Dckt. No. 317 at 3:1-2 (Plaintiffs’ opposition to Defendant’s first motion to dismiss the

pertinent class members); see also Cruz Dckt. No. 142 at 8:20-9:30 (Plaintiffs’ section of the

-15Plaintiffs’ Opp. to Defendant’s Motion to Dismiss Claims of Class Members Who Failed to Respond to Discovery

Case3:07-cv-02050-SC Document268 Filed01/17/11 Page21 of 23

SCOTT COLE & ASSOCIATES, APC
ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR
OAKLAND, CA 94612 TEL: (510) 891-9800

1

Finally, Dollar Tree argues that the information sought by way of the class discovery requests

2 “is crucial to a proper defense” on the basis that it will have “difficulty making a reasonable estimate

3 of its potential liability in this matter, given the refusal of Class Members to provide estimates of the

4 number of hours worked, and the number of meal and rest periods taken.” MTD at 10:13-17.

5 Questions regarding the number of hours worked and/or breaks missed, however, pertain to

6 damages, not liability. Such a damages inquiry will only become necessary after this Court finds that

7 Dollar Tree is liable for misclassifying its Store Managers as exempt (and will be unnecessary in the

8 unlikely event that Defendant is not found liable). Furthermore, Defendant’s repetitious claims that

9 more than 200 absent class member discovery responses -- on top of some 50 class member

10 depositions, tens of thousands of pages of discovery and a handful of FRCP Rule 30(b)(6) and expert

11 depositions -- are not enough for Defendant to “make a reasonable estimate of its potential liability 12 in this matter”33 -- belie credibility. Indeed, Defendant’s ongoing push to have the pertinent class

13 members dismissed from this certified class action suggests that the class discovery requests were

14 propounded primarily, if not exclusively, to reduce the size of the class. See, e.g., McPhail, 251

15 F.R.D. at 518 (“notwithstanding Defendants’ stated purpose of utilizing the discovery responses to

16 rebut the presumption of reliance and to defend other elements of Plaintiffs’ claim, the practical

17 effect of the discovery would be to reduce the size of the class”) (emphasis added).

18

Even if these requests were served for a legitimate purpose (which they were not), this Court

19 has observed that “Dollar Tree’s common policy of having SMs fill out weekly certifications 20 obviates the need for much individual testimony from SMs concerning how they spent their time.”34

21 This Court’s clear willingness to employ representative testimony and other innovative tools to try

22 class-wide liability undermines Dollar Tree’s claims of necessity and prejudice if this Court declines

23 to adopt the Brennan dismissal remedy. This Court already eviscerated a large portion of the class

24

25

February 25, 2010 Joint Case Management Statement) (Plaintiffs have not contested providing

26 discovery from class members selected to provided representational testimony).

27

33 See Cruz Dckt. No. 246 at 3; MTD at 3; see also MTD at 10:7-8, 12:25-26; and see Dckt. No. 302 at ¶ 12.

28 34 Decert. Order at 13:11-13; 21 at fn. 5 (“[t]he Court also is not opposed, in principle, to the

parties’ use of representative testimony”).

-16-

Plaintiffs’ Opp. to Defendant’s Motion to Dismiss Claims of Class Members Who Failed to Respond to Discovery

Case3:07-cv-02050-SC Document268 Filed01/17/11 Page22 of 23

SCOTT COLE & ASSOCIATES, APC
ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR
OAKLAND, CA 94612 TEL: (510) 891-9800

1 members from the class definition35 and previously declined to consider responses to the class

2 discovery requests in the adjudication of Defendant’s Motion to Decertify the Class. See Dckt. No.

3 250. Since this Court did not see fit to decertify the entire class, it should decline to “finish the job”

4 through the levy of a dispositive discovery sanctions. For these reasons, Defendant’s request for

5 terminating sanctions against absent class members should be denied or, alternatively, continued

6 until after the selection of the “handful” of representative class member witnesses.

7

8 IV. CONCLUSION

9

The statutory basis for Dollar Tree’s MTD does not apply to passive, absentee class

10 members, and the weight of judicial precedent disfavors the use of terminating sanctions even

11 against named parties. Indeed, where such sanctions are levied against named parties, they are only

12 appropriate as a last resort where the party seeking discovery can show willful disregard of a court

13 order or bad faith. Here, Defendant has not claimed that any of the pertinent class members received

14 actual notice of the class discovery requests, so it cannot logically claim that their purported failure

15 to respond was a willful or bad faith omission.

16

Moreover, Dollar Tree had ample opportunity to investigate the class members’ claims for

17 nearly two years prior to class certification. Rather than fully investigating this matter prior to class

18 certification, Defendant propounded formal written discovery on over 700 absent class members - -

19 extraordinary relief for a case of this kind. Now, on the eve of trial and with millions of dollars on

20 the line, Defendant makes a last ditch effort to pare the ranks of the class by arguing that it will

21 suffer undue prejudice if the class members who haven’t submitted discovery responses are allowed

22 to stay in the case. Such a claim flies in the face of Rule 23’s “opt out” requirement, this Court’s

23 prior determination that liability will be tried through representative testimony and Plaintiffs' stated

24 commitment to provide full discovery for each testifying class member.

25

This Court may safely refrain from taking any action against the pertinent class members

26 right now since their individual discovery responses are unnecessary for class-wide liability

27

28 35

See, generally, Decert. Order.

-17-

Plaintiffs’ Opp. to Defendant’s Motion to Dismiss Claims of Class Members Who Failed to Respond to Discovery

Case3:07-cv-02050-SC Document268 Filed01/17/11 Page23 of 23

SCOTT COLE & ASSOCIATES, APC
ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR
OAKLAND, CA 94612 TEL: (510) 891-9800

1 determinations. Thus, the Court can assess the impact the class members’ discovery responses (or

2 the lack thereof) have on the individual issues that remain after trial.

3

For all of the foregoing reasons, this Court should deny Defendant’s MTD, or, alternatively,

4 continue the hearing thereon until after the selection of the “handful” of representative class member

5 witnesses.

6

7 Dated: January 14, 2011

SCOTT COLE & ASSOCIATES, APC

8

9

By: /s/ Molly A. DeSario

Molly A. DeSario, Esq.

10

Attorneys for Representative Plaintiffs

11

and the Plaintiff Class

12

13

14

15

16

17

18

19

20

21

22

23

24

25

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-18Plaintiffs’ Opp. to Defendant’s Motion to Dismiss Claims of Class Members Who Failed to Respond to Discovery

 
 Case3:07-cv-02050-SC Document277 Filed02/03/11 Page1 of 18

1 MAUREEN E. McCLAIN, Bar No. 062050

MATTHEW P. VANDALL Bar No. 196962

2 KRISTA STEVENSON JOHNSON, Bar No. 185241

LITTLER MENDELSON,

3 A Professional Corporation 650 California Street, 20th Floor

4 San Francisco, CA 941082693

Telephone: 415.433.1940

5 Facsimile: 415.399.8490

Email:

mmcclain@littler.com

6

mvandall@littler.com

kjohnson@littler.com

7

Attorneys for Defendant

8 DOLLAR TREE STORES, INC.

9 BETH HIRSCH BERMAN (VA Bar No. 28091)

WILLIAMS MULLEN

10 Dominion Tower, Suite 1700

999 Waterside Drive

11 Norfolk, Virginia 23510

Telephone: (757) 629-0604

12 Facsimile: (757) 629-0660

Email:

bberman@williamsmullen.com

13

Pro Hac Vice Attorneys for Defendant

14 DOLLAR TREE STORES, INC.

15

UNITED STATES DISTRICT COURT

16

NORTHERN DISTRICT OF CALIFORNIA

17 MIGUEL A. CRUZ, and JOHN D. HANSEN, individually and on behalf of all
18 others similarly situated,

19

Plaintiffs,

20

v.

21 DOLLAR TREE STORES, INC.,

22
23
24
25
26
27
28
LIT T LE R ME NDE LSO N
A PROF E SSIONAL C ORPORAT ION 650 C a lifornia Stre e t 20th F loor
Sa n F ra ncisco, C A 94108.2693 4 1 5 . 43 3 . 19 4 0

Defendant. ___________________________________ ROBERT RUNNINGS individually, and on behalf of all others similarly situated,
Plaintiff,
v.
DOLLAR TREE STORES, INC.,
Defendant.
DT’S MOTION TO BIFURCATE AND TO ALTER THE PRESENTATION OF THE ORDER OF PROOF AT TRIAL

Case No. C 07 2050 SC Case No. C 07 04012 SC

NOTICE OF MOTION AND MOTION TO BIFURCATE THE LIABILITY AND DAMAGES PHASES OF TRIAL AND TO SET THE ORDER OF PRESENTATION AND ARGUMENT AT TRIAL

Date: Time: Dept.: Judge:

March 11, 2011 10:00 a.m. Crtrm. 1, 17th Floor Hon. Samuel Conti

Trial Date:

None Set

Complaints Filed: April 11, 2007

July 6, 2007

No. C 07 2050 SC and C 07 04012 SC

Case3:07-cv-02050-SC Document277 Filed02/03/11 Page2 of 18

1 2 3 I. 4 II. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22
III. 23 24 25 26 27 28

TABLE OF CONTENTS
PAGE STATEMENT OF FACTS ...................................................................................................1
ARGUMENT .......................................................................................................................2
A. The Court Should Bifurcate Liability And Damages Issues Into Two Separate Trial Phases ..............................................................................................................2
1. Legal Standard For Bifurcation Orders Under Rule 42(b) ..............................2
2. The Court Should Order Bifurcation Because Liability and Damages Issues are Distinct and Separable...................................................................3
3. Bifurcation Serves the Ends of Convenience and Judicial Economy ..............5
4. Bifurcation is Necessary to Avoid Prejudice to Dollar Tree ...........................6
5. Bifurcation is Necessary to Avoid the Risk of Jury Confusion.......................6
B. The Liability and Damages Phases of the Trial Should be Tried by the Same Jury Sequentially ......................................................................................................7
C. The Court Should Grant Dollar Tree’s Request To Alter The Order Of Presentation Of Evidence And Argument..................................................................8
1. The Court Has Discretion to Allow Dollar Tree to Present and Argue Its Case First at the Liability Phase of Trial ...................................................8
D. Dollar Tree Should Be Permitted to Proceed First Because It Bears the Burden of Proof as to the Central Issue of this Litigation.......................................................9
E. Dollar Tree Will Stipulate That Each Class Member Worked, During At Least One Week In The Class Period, Hours Over Eight Hours In A Work Day And/Or Over Forty Hours In A Work Week............................................................10
F. Dollar Tree Will Suffer Prejudice If Plaintiff Runnings Is Allowed to Proceed First ........................................................................................................................11
G. Proposed Order of Presentation and Argument........................................................11
CONCLUSION ..................................................................................................................11

i

Case3:07-cv-02050-SC Document277 Filed02/03/11 Page3 of 18

1

TABLE OF AUTHORITIES

2

3 FEDERAL CASES

4 Arthur Young & Co. v. U.S. District Court 549 F.2d 686, 697 (9th Cir. 1977) ......................................................................................... 5
5

6

Bates v. United Parcel Service 204 F.R.D. 440 (N.D. Cal. 2001)........................................................................................... 2

7 Giro Sport Design, Inc. v. Pro-Tec, Inc.

8

No. C-88-20228-RPA, 1989 U.S. Dist. LEXIS 9423 (N.D. Cal. Mar. 17, 1989) .................... 3

9 In re Memorex Security Cases

61 F.R.D. 88 (N.D. Cal. 1973)............................................................................................... 5 10

Johaness v. Aerotek, Inc.

11

No. CV 98-6153 DT, 2001 U.S. Dist. LEXIS 25409 (C.D. Cal. June 25, 2001) ................. 4, 9

12 Lamon v. City of Shawnee

13

No. 88-4200-S, 1990 U.S. Dist. LEXIS 10608 (D. Kan. July 10, 1990) ................................. 5

14 Latino Food Marketers, LLC v. Ole Mexican Foods, Inc.

No. 03-C-0190-C, 2004 U.S. Dist. LEXIS 5239 (W.D. Wis. Mar. 30, 2004) ......................... 8

15

Lentner v. Lieberstein

16

279 F.2d 385 (7th Cir. 1960) ................................................................................................. 9

17 Lopez v. United Parcel Service, Inc.

18

No. C 08-05396 SI, 2010 U.S. Dist. LEXIS 68868 (N.D. Cal. June 18, 2010) ................. 3, 10

19 Montwood Corp. v. Hot Springs Theme Park Corp.

766 F.2d 359 (8th Cir. 1985) ................................................................................................. 8

20

Moylan v. Meadow Club, Inc.

21

979 F.2d 1246 (7th Cir. 1992) ....................................................................................... 10, 11

22 Rees v. Souza’s Milk Transp. Co.

23

No. 1:05-cv-00297-LJ-SMS, 2008 U.S. Dist. LEXIS 11370 (E.D. Cal. Jan. 29, 2008)....... 4, 5

24 Reich v. Dep’t of Conserv. & Nat. Res. 28 F.3d 1076 (11th Cir. 1994) ............................................................................................... 5

25 Reyes v. Texas EZPawn, L.P.

26

No. V-03-128, 2007 U.S. Dist. LEXIS 78846 (S.D. Tex. Oct. 24, 2007)........................ 10, 11

27
28
LIT T LE R ME NDE LSO N
A PROF E SSIONAL C ORPORAT ION 650 C a lifornia Stre e t 20th F loor
Sa n F ra ncisco, C A 94108.2693 4 1 5 . 43 3 . 19 4 0

Stewart v. City and County of San Francisco 834 F. Supp. 1233 (N.D. Cal. 1993) ...................................................................................... 4

DT’S MOTION TO BIFURCATE AND TO ALTER THE PRESENTATION OF THE ORDER OF PROOF AT TRIAL

No. C 07 2050 SC and C 07 04012 SC

Case3:07-cv-02050-SC Document277 Filed02/03/11 Page4 of 18

1 Thiebes v. Wal-Mart Stores Inc. No. 98-802-KI, 2004 U.S. Dist. LEXIS 15263 (D. Or. July 26, 2004) ................................... 5
2

3

U.S. v. Downing 753 F.2d 1224 (3d Cir. 1985) ................................................................................................ 8

4 U.S. v. Zemek

5

634 F.2d 1159 (9th Cir. 1980) ............................................................................................... 8

6 United States v. Shell Oil Co.

No. CV 91-0589-RJK, 1992 U.S. Dist. LEXIS 3947 (C.D. Cal. Jan. 17, 1992)...................... 3 7

Wilkins v. City of Oakland

8

No. C 01-1402 MMC, 2006 U.S. Dist. LEXIS 37299 (N.D. Cal. Feb. 8, 2006) ..................... 7

9 CALIFORNIA CASES

10 Bell v. Farmers Ins. Exchange

11

115 Cal. App. 4th 715 (Cal. App. 1st Dist. 2004) ............................................................ 3, 10

12 Hernandez v. Mendoza 199 Cal. App. 3d 721 (Cal. App. 2d Dist. 1988) .................................................................... 4
13

Pellegrino v. Robert Half Int’l, Inc.

14

182 Cal. App. 4th 278 (Cal. App. 4th Dist. 2010) ......................................................... 4, 9, 10

15 Ramirez v. Yosemite Water Co.

16

20 Cal. 4th 785 (1999)....................................................................................................... 3, 9

17 CALIFORNIA STATUTES

18 Cal. Code Regs., Title 8 § 11070................................................................................................. 3

19 Cal. Code Regs., Title 8 § 11070(1)(A)(1)(a)-(f) (2010).............................................................. 4
20 OTHER STATUTES
21 California Labor Code§ 510(a) ................................................................................................... 2
22 OTHER AUTHORITIES
23 53 A.L.R. Fed. 900 (2009) .......................................................................................................... 8
24 75 Am. Jur. 2d Trial § 275 (2010) ............................................................................................... 8
25 1-5 Susan Spurlark, California Employment Law § 5.72 (2010)................................................ 10
26 California Wage Order 7-2001 § 1 (A) (1) .................................................................................. 1
27

28

LITTLE R ME NDE LSON DT’S MOTION TO BIFURCATE AND TO ALTER

A PROF E SSIONAL C ORPORAT ION 650 C a lifornia Stre e t

THE PRESENTATION OF THE ORDER OF PROOF

2.

20th F loor Sa n F ra ncisco, C A 94108.2693

AT TRIAL

4 1 5 . 43 3 . 19 4 0

No. C 07 2050 SC and C 07 04012 SC

Case3:07-cv-02050-SC Document277 Filed02/03/11 Page5 of 18

1 9A CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 2391 (3d ed. 2008) ................................................................................................................ 7
2 3 FED. R. CIV. PROC., Rule 42(b)........................................................................................ 2, 3, 6, 7 4 FED. R. CIV. PROC., Rule 53.................................................................................................... 7, 8
5 FED. R. CIV. PROC., Rule 53(e)(3) ............................................................................................... 7

6 FED. R. EVID. 611(a) ................................................................................................................... 9

7 MANUAL FOR COMPLEX LITIGATION (FOURTH) § 11.632 .............................................................. 7

8

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LITTLE R ME NDE LSON DT’S MOTION TO BIFURCATE AND TO ALTER

A PROF E SSIONAL C ORPORAT ION 650 C a lifornia Stre e t

THE PRESENTATION OF THE ORDER OF PROOF

3.

20th F loor Sa n F ra ncisco, C A 94108.2693

AT TRIAL

4 1 5 . 43 3 . 19 4 0

No. C 07 2050 SC and C 07 04012 SC

Case3:07-cv-02050-SC Document277 Filed02/03/11 Page6 of 18

1

NOTICE OF MOTION

2

TO THE COURT, ALL PARTIES, AND ALL ATTORNEYS OF RECORD:

3

Please take notice that on March 11, 2011, at 10:00 a.m., or as soon thereafter as this matter

4

can be heard, in the Courtroom of the Honorable Samuel Conti, Courtroom 1, 17th Floor, 450

5

Golden Gate Avenue, San Francisco, California, Defendant Dollar Tree Stores, Inc. (“Dollar Tree”

6

or “Defendant”) will, and hereby does, move the Court for an order bifurcating the liability and

7

damages issues into two trial phases. Defendant will also, and hereby does, move the Court for an

8

order setting the sequence of presentation and argument at trial. This motion is made pursuant to

9

Rule 42(b) of the Federal Rules of Civil Procedure (“Rule 42(b)”) and Civil Local Rule 7-2.

10

Defendant’s motion is based upon this Notice of Motion and Motion, the accompanying

11

Memorandum of Points and Authorities, the Declaration of Matthew P. Vandall, the oral arguments

12

of counsel and all other pertinent papers contained in the Court’s files.

13

RELIEF REQUESTED

14

Dollar Tree seeks an order bifurcating the liability and damages issues at trial into two

15

distinct phases. Phase One will address liability and focus the Court and the jury upon the central

16

question of whether Dollar Tree properly classified Class Members (“CMs”) as exempt executives

17

under California law. If, and only if, there is a liability determination in Phase One, Dollar Tree

18

seeks an order requiring Phase Two to commence immediately for the purpose of allowing the same

19

jury to determine damages, if any, on a class-wide basis.

20

Dollar Tree also seeks an order setting the sequence of presentation and argument during

21 Phase One based upon the proper allocation of the burden of proof. Specifically, Dollar Tree seeks
22 an order allowing Defendant to: (1) present its case-in-chief first and then be permitted to rebut
23
Plaintiff Runnings’ case-in-chief, and (2) give its opening statement first, its closing argument first, 24

25 and its rebuttal argument last.

26

27

28
LIT T LE R ME NDE LSO N
A PROF E SSIONAL C ORPORAT ION 650 C a lifornia Stre e t 20th F loor
Sa n F ra ncisco, C A 94108.2693 4 1 5 . 43 3 . 19 4 0

DT’S MOTION TO BIFURCATE AND TO ALTER THE PRESENTATION OF THE ORDER OF PROOF AT TRIAL

No. C 07 2050 SC and C 07 04012 SC

Case3:07-cv-02050-SC Document277 Filed02/03/11 Page7 of 18

1

MEMORANDUM OF POINTS AND AUTHORITIES

2
I. STATEMENT OF FACTS. 3
On April 11, 2007, Plaintiffs Miguel Cruz and John Hansen, on behalf of themselves and 4
others similarly situated, filed a class action lawsuit against Dollar Tree alleging that they were 5
improperly classified as exempt employees and denied wages for overtime under California law. On 6
July 6, 2007, Plaintiff Robert Runnings filed a substantially similar class action in California 7
Superior Court, which Dollar Tree removed to this Court. On November 20, 2007, this Court 8
consolidated the two actions and, on May 26, 2009, the Court certified this case as a class action. 9
On September 9, 2010, the Court decertified a substantial portion of the class. (See Case No. 3:0710
cv-04012-SC, ECF Ref. No. 260 (Order Granting in Part and Denying in Part Defendant’s Motion to 11
Decertify (the “Partial Decertification Order”), at p. 23:2-17.) 12
Following the Partial Decertification Order, the class consists of “[a]ll persons who were 13
employed by [Dollar Tree] as California retail Store Managers at any time [during the Class Period] 14
and who responded ‘no’ at least once on Dollar Tree’s weekly payroll certifications.” (Partial 15
Decertification Order, p. 23:4-8.) An effect of the Partial Decertification Order is that former class 16
representatives Cruz and Hansen are no longer part of the class. See Declaration of Matthew P. 17
Vandall, ¶ 3.1 Dollar Tree maintains that each of the remaining CMs are “exempt” executives under 18
Section 1 (A) (1) of the California Wage Order 7-2001, and, therefore, that each is due no more 19
remuneration than the compensation already received. 20
This Court scheduled the class trial to begin on March 7, 2011. (Case 3:07-cv-02050-SC, 21
ECF Ref. No. 150, ¶ 9.) On January 11, 2011, however, the trial date was vacated and the Court 22
scheduled a Trial Setting Conference which is now scheduled to occur on June 24, 2011. (Id., ECF 23
Ref. Nos. 265, 271.) 24
On January 24, 2011, counsel for Dollar Tree and Plaintiff Runnings met and conferred with 25

26
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LIT T LE R ME NDE LSO N
A PROF E SSIONAL C ORPORAT ION 650 C a lifornia Stre e t 20th F loor
Sa n F ra ncisco, C A 94108.2693 4 1 5 . 43 3 . 19 4 0

1 The parties are meeting and conferring with respect to the timing of the anticipated trial on the individual wage and hour claims of Cruz and Hansen. (Vandall Decl., ¶ 3). Dollar Tree proposes that such trial occur as soon as possible and before the class trial. (Id.) As of the date this motion was filed, counsel for Messrs. Cruz and Hansen have not identified their position on this subject. (Id.)

DT’S MOTION TO BIFURCATE AND TO ALTER

THE PRESENTATION OF THE ORDER OF PROOF

1.

AT TRIAL

No. C 07 2050 SC and C 07 04012 SC

Case3:07-cv-02050-SC Document277 Filed02/03/11 Page8 of 18

1 respect to numerous trial management issues, including the relief Dollar Tree now seeks. (Vandall

2 Decl., ¶¶ 3-4.) With respect to bifurcation, Class counsel agreed in principle to the concept and

3 indicated that Plaintiff Runnings would also seek a bifurcation order as part of his trial plan. (Id.)

4 The parties’ proposals differed, however, in several material respects: (1) Class counsel suggested

5 that the damages phase occur one or two months after the liability phase (Vandall Decl., ¶ 5.); and

6 (2) Class counsel proposed bifurcating liability and damages issues while also proposing that

7 Plaintiff Runnings present damages evidence for select Class Members during the liability phase

8 (Vandall Decl., ¶ 5.). With respect to Dollar Tree’s request to alter the presentation of the order of

9 proof at trial, Class counsel would not agree to allow Dollar Tree to present first and instead invited

10 this motion. (Vandall Decl., ¶ 6.)

11

Dollar Tree also proposed simultaneous briefing so that this motion and Plaintiff Runnings’

12 anticipated trial plan motion could be heard and resolved at the same time. (Vandall, ¶ 4.) Class

13 counsel refused this proposal and was not able to commit to a date certain by which their trial plan

14 motion will be filed. (Id.)

15

To narrow the issues that must be tried, Dollar Tree will stipulate that each Class Member

16 worked, during at least one week in the Class Period, hours over eight hours in a work day and/or 17 over forty hours in a work week.2

18 II. 19 20 21

ARGUMENT. A. The Court Should Bifurcate Liability And Damages Issues Into Two Separate
Trial Phases. 1. Legal Standard For Bifurcation Orders Under Rule 42(b).
Rule 42(b) provides that this Court may “order a separate trial of one or more separate

22 issues” for “convenience, to avoid prejudice, or to expedite and economize . . .” See also Bates v.

23 United Parcel Service, 204 F.R.D. 440, 448 (N.D. Cal. 2001) (noting that factors commonly

24 considered under Rule 42(b) include convenience and judicial economy, prejudice to the parties, risk

25 of confusion, and separability of issues). To bifurcate a trial into phases, only one of Rule 42(b)’s

26
27
28
LIT T LE R ME NDE LSO N
A PROF E SSIONAL C ORPORAT ION 650 C a lifornia Stre e t 20th F loor
Sa n F ra ncisco, C A 94108.2693 4 1 5 . 43 3 . 19 4 0

2 This case involves the CMs’ claims for overtime compensation under Section 510(a) of the California Labor Code. Under the statute, "[a]ny work in excess of eight hours in one workday and any work in excess of 40 hours in any one workweek and the first eight hours worked on the seventh day of work in any one workweek shall be compensated at the rate of no less than one and one-half times the regular rate of pay for an employee." Cal. Lab. Code § 510(a) (2010).

DT’S MOTION TO BIFURCATE AND TO ALTER

THE PRESENTATION OF THE ORDER OF PROOF

2.

AT TRIAL

No. C 07 2050 SC and C 07 04012 SC

Case3:07-cv-02050-SC Document277 Filed02/03/11 Page9 of 18

1 requirements must be satisfied. Giro Sport Design, Inc. v. Pro-Tec, Inc., No. C-88-20228-RPA,

2 1989 U.S. Dist. LEXIS 9423, at * 3-4 (N.D. Cal. Mar. 17, 1989) (Rule 42(b) standards “are in the

3 disjunctive instead of the conjunctive”); United States v. Shell Oil Co., No. CV 91-0589-RJK, 1992

4 U.S. Dist. LEXIS 3947, at * 29-30 (C.D. Cal. Jan. 17, 1992) (“Only one of Rule 42(b)’s conditions

5 has to be met…”). When ordering a separate trial, however, “the court must preserve any federal

6 right to a jury trial.” FED. R. CIV. PROC., Rule 42(b).

7

This Court has noted that “if this case proceeds to trial, the court is likely to divide the trial

8 into a liability and damages phase.” Cruz, 2010 U.S. Dist. LEXIS 101340, at * 22.3 The Court

9 should do so here because the Rule 42(b) standard is satisfied.

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2. The Court Should Order Bifurcation Because Liability and Damages Issues are Distinct and Separable.
Bifurcation is appropriate “because the standards and evidence required to prove liability are

entirely different than the evidence required to prove damages.” Goldman, 2005 U.S. Dist. LEXIS

9174, at * 4. Indeed, the burden of proof as to various liability and damages issues shifts between

the parties through each phase of the trial.

In Phase One, CMs need only show that they worked, during at least one week in the Class

Period, hours over eight hours in a work day and/or over forty hours in a work week. Bell v.

Farmers Ins. Exchange, 115 Cal. App. 4th 715, 749-750 (Cal. App. 1st Dist. 2004); see also Lopez v.

United Parcel Service, Inc., No. C 08-05396 SI, 2010 U.S. Dist. LEXIS 68868, at * 14-15 (N.D. Cal.

June 18, 2010) (affirming plaintiff bears the burden of proving he worked overtime hours). As

described above, Dollar Tree is willing to stipulate to this showing.

Dollar Tree therefore bears the ultimate burden in Phase One of proving that CMs are not entitled to overtime because they were properly classified as exempt executives.4 See e.g., Ramirez

3 The Court further noted that it “is likely to appoint a special master to handle particular damages claims of class members”. (Cruz, 2010 U.S. Dist. LEXIS 101340, at * 22). As described below, Dollar Tree objects to the appointment of a special master in this case to the extent such appointment does not allow Dollar Tree to preserve its federal right to a jury trial. (See Rule 42(b).) 4 The executive exemption is set forth in Industrial Welfare Commission ("IWC") Order 7-2001, Cal. Code Regs., tit. 8 § 11070. To qualify as an exempt executive employee, the employee must: (1) manage the enterprise, a customarily recognized department, or subdivision thereof; (2) direct the work of two or more other employees; (3) have the authority to hire or fire, or have their recommendations to hire, fire, or promote given weight; (4) exercise discretion and independent judgment; (5) be primarily engaged in exempt activity more than fifty percent of the time; and (6)

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THE PRESENTATION OF THE ORDER OF PROOF

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1 v. Yosemite Water Co., 20 Cal. 4th 785, 794-95 (1999) (“the assertion of an exemption from the

2 overtime laws is considered to be an affirmative defense, and therefore the employer bears the

3 burden of proving the employee’s exemption”); Johaness v. Aerotek, Inc., No. CV 98-6153 DT

4 (AJWx), 2001 U.S. Dist. LEXIS 25409, at * 38 (C.D. Cal. June 25, 2001) (“Under the FLSA and

5 California law, the burden is placed squarely upon the employer to establish the application of any

6 exemption to an employee”). Thus in Phase One, the evidence will focus upon Dollar Tree’s exempt

7 status expectations for the California Store Manager position, whether and how those expectations

8 were communicated to CMs, store manager training, the job duties store managers actually

9 performed, how CMs were paid (e.g., more than double the prevailing minimum wage), and the

10 meaning of the weekly payroll certifications Dollar Tree received during the Class Period. Plaintiff

11 Runnings and the CMs will present evidence in Phase One attempting to rebut this showing.

12

In Phase Two, which becomes necessary only following a liability determination, the burden

13 shifts to Plaintiff Runnings and the CMs to prove damages on a class basis. Hernandez v. Mendoza,

14 199 Cal. App. 3d 721, 727 (Cal. App. 2d Dist. 1988). The damages evidence, if any, that would

15 arise in Phase Two includes the amount and extent of uncompensated overtime work performed, and

16 whether and how often CMs were denied the opportunity to take rest breaks and/or meal periods.

17 These issues, and the supporting evidence required to prove them, are separate and distinct from the

18 liability determination the jury will be asked to make in Phase One.

19

California state and federal courts recognize that bifurcation orders are appropriate under

20 analogous circumstances. See Rees v. Souza’s Milk Transp. Co., No. 1:05-cv-00297-LJ-SMS, 2008

21 U.S. Dist. LEXIS 11370, at * 3-5 (E.D. Cal. Jan. 29, 2008) (bifurcating liability and damages in a

22 motor carrier safety exemption action brought under both the FLSA and the California Labor Code); 23 Pellegrino v. Robert Half Int’l, Inc., 182 Cal. App. 4th 278, 285-86 (Cal. App. 4th Dist. 2010) (same 24 with respect to the administrative exemption);5 see also Stewart v. City and County of San

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earn a monthly salary equal to twice the state minimum wage for full-time employment. Cal. Code Regs., tit. 8 § 11070(1)(A)(1)(a)-(f) (2010). 5 In that case, the court ordered the defendant to proceed first during the liability phase because it had the burden of proof on the defense. As discussed below, Dollar Tree should be permitted to proceed first during the liability phase of trial because it bears the burden of proof as to the applicability of the executive exemption to the CMs.

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THE PRESENTATION OF THE ORDER OF PROOF

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1 Francisco, 834 F. Supp. 1233, 1234 (N.D. Cal. 1993) (in an FLSA action, bifurcating the issue of

2 liability and the applicability of the “salary test” for the managerial exemption from the issue of 3 damages).6

4

Hence, because the liability and damages issues are readily separable and because Courts

5 regularly issue bifurcation orders in exemption cases, this Court should order bifurcation of the class

6 trial into two phases.

7

3. Bifurcation Serves the Ends of Convenience and Judicial Economy.

8

Consideration of judicial economy and expedition is of special import in a class action which

9 carries with it “the prospect of burdening a jury with the task of analyzing the damages as to each 10 class member” in a class currently comprised of approximately 273 members.7 Arthur Young & Co.

11 v. U.S. District Court, 549 F.2d 686, 697 (9th Cir. 1977), quoting In re Memorex Security Cases, 61

12 F.R.D. 88, 103 (N.D. Cal. 1973). Doubtless, by focusing the attention on the overarching issues

13 concerning Dollar Tree’s exemption defense, bifurcation will save time and resources. See

14 Goldman, 2005 U.S. Dist. LEXIS 9174, at * 3-4 (“Bifurcating the trial promotes judicial expedition

15 and economy by limiting evidence to that which is essential to the disposition of the case”); Rees,

16 2008 U.S. Dist. LEXIS 11370, at * 4 (“Determination of the liability issue or issues may completely

17 eliminate the need for adjudication of damages issues …”).

18

Importantly, bifurcation will promote convenience and judicial economy regardless of the

19 determination during the liability phase. Indeed, if Dollar Tree prevails in Phase One, the jury will

20 be released and need not expend any unnecessary time considering the parties’ damages evidence.

21 Even if Dollar Tree does not prevail in Phase One, however, a bifurcation order will promote

22 convenience and economy by clarifying the scope of Phase Two. For example, if the jury

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6 Likewise, courts outside of California also bifurcate the liability and damages phases in wage and hour class and collective actions. See generally, Reich v. Dep’t of Conserv. & Nat. Res., 28 F.3d 1076, 1078 (11th Cir. 1994) (“The district court bifurcated the issues of liability and damages…”); Thiebes v. Wal-Mart Stores Inc., No. 98-802-KI, 2004 U.S. Dist. LEXIS 15263, at * 2 (D. Or. July 26, 2004) (ordering “separate trials on liability and damages”); Lamon v. City of Shawnee, No. 884200-S, 1990 U.S. Dist. LEXIS 10608, at * 3 (D. Kan. July 10, 1990) (“the court finds that convenience, expedition and economy will be promoted by separate trials of the damage and liability issues”). 7 Dollar Tree separately moves for the dismissal of 109 CMs who failed to respond to Court-ordered discovery in this action. (ECF Ref. No. 259.) That motion is scheduled for hearing on February 4, 2011. If Dollar Tree’s motion is granted in full, the class will be reduced to 164 members.

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1 determines that liability may be imposed only during weeks in which a “no” certification response

2 was received by Dollar Tree, then Phase Two will be tailored to that issue. If, however, the jury

3 determines that misclassification was the rule rather than the exception at Dollar Tree, there “may be

4 more scope for individual testimony from class members at the damages phase” Cruz, 2010 U.S.

5 Dist. LEXIS 101340, at * 23. Thus, no matter what the outcome of the liability phase, a bifurcation

6 order serves the purposes of Rule 42(b).

7

4. Bifurcation is Necessary to Avoid Prejudice to Dollar Tree.

8

Dollar Tree is entitled to fair trial. Combining evidence of liability and damages, however,

9 may lead the jury to find Dollar Tree liable simply by exposure to damages testimony.8 On the other

10 hand, because the issues of liability are not intertwined with the issues to be addressed during the

11 damages phase, the CMs are unaffected by bifurcation. See Goldman, 2005 U.S. Dist. LEXIS 9174,

12 at * 4 (“The issue of liability and the issue of damages are legally distinct; therefore, bifurcation will

13 not prejudice [plaintiff]. Conversely, if the Court did not bifurcate, the intermingling of liability

14 with the issues of […] damages might prejudice [defendant]”). The Court should order bifurcation

15 on this ground.

16

5. Bifurcation is Necessary to Avoid the Risk of Jury Confusion.

17

Given the distinct, shifting burdens of proof and the required elements of the executive

18 exemption, described above, there exists a risk of juror confusion unless the Court orders

19 bifurcation. Without bifurcation, the jury will be called upon prematurely to endure evidence of

20 damages while simultaneously considering questions of liability. In addition, the jury will hear

21 individual facts and circumstances bearing on a potentially needless proof of hours worked, pay

22 rates, meal periods, rest breaks and wage statements, all ostensibly before Dollar Tree presents its

23 exemption defense. This would be difficult under any circumstance. In the context of a class action,

24 however, the risk of confusion is amplified by the individualized nature of damages and the need to

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8 During the parties’ meet and confer discussions regarding this issue, Class counsel agreed to the concept of a phased approach to trial. (Vandall Decl., ¶ 5.) They revealed for the first time, however, that Phase One of the trial should include the presentation of evidence of liability for the entire class and damages for the individual CMs they will select to testify at trial. (Id.) Phase Two, in Class counsel’s view would focus upon damages for the remainder of the Class – or the nontestifying CMs. (Id.) This plan is nonsensical and would increase juror confusion by purporting to separate liability and damages in theory but not in practice.

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1 assess such damages for 273 CMs. The Court should grant Dollar Tree’s bifurcation request on this

2 ground.

3

B. The Liability and Damages Phases of the Trial Should be Tried by the Same

Jury Sequentially.

4

In the interest of judicial efficiency, convenience, and the avoidance of prejudice, the liability

5 and damages phases should be tried sequentially by the same jury. “Generally, when issues are 6 severed for separate trials, they should be tried before the same jury unless they are entirely

7 unrelated.” MANUAL FOR COMPLEX LITIGATION (FOURTH) § 11.632 (2010). Such a trial may be

8 conducted by having evidence on discrete issues presented sequentially, with the jury returning a

9 verdict on an issue before the trial moves on to the next issue. Id. In fact, the preferred practice in

10 bifurcated trials is to use the same jury for all issues in an action, even though the jury may hear 11 those issues at different times. 9A CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL 12 PRACTICE AND PROCEDURE § 2391 (3d ed. 2008); Wilkins v. City of Oakland, No. C 01-1402 MMC,

13 2006 U.S. Dist. LEXIS 37299 (N.D. Cal. Feb. 8, 2006) (granting defendant’s motion for bifurcated

14 trial before same jury). Although this Court contemplated the use of a special master in the damages

15 phase of the trial, Dollar Tree objects to any bifurcation procedure that does not preserve its “federal

16 right to a jury trial.” (FED. R. CIV. PROC., Rule 42(b).)

17

Under the current version of Rule 53 of the Federal Rules of Civil Procedure (“Rule 53”),9

18 the use of a special master in the damages phase of trial is inappropriate in this case. Under Rule 53,

19 masters can be appointed in jury cases only when the parties have given their consent.10 Because

20 Dollar Tree neither consents to the use of a special master at the damages phase of trial nor waives

21 its right to a jury determination of damages, the appointment of a special master would be improper.

22

Finally, in the unlikely event that Phase One of the trial results in a liability determination

23 against Dollar Tree, Defendant is prepared to move immediately into Phase Two and present its

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9 This Rule provides for the appointment of a special master under certain circumstances, none of which are present in this litigation. 10 As the Advisory Committee explained, “The use of a trial master without party consent is abolished as to matters to be decided by a jury unless a statute provides for this practice. . . A trial master should be appointed in a jury case, with consent of the parties and concurrence of the court, only if the parties waive jury trial with respect to the issues submitted to the master or if the master’s findings are to be submitted to the jury as evidence in the manner provided by former Rule

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1 damages evidence. There is no need for any delay between Phases and none should be ordered by

2 the Court because any such delay will only impose additional hardships on the jurors who must

3 resolve the damages issues.
4

5

Accordingly, Dollar Tree respectfully requests that the liability and damages phases be tried

6 sequentially, without delay and by the same jury.

7

C. The Court Should Grant Dollar Tree’s Request To Alter The Order Of

Presentation Of Evidence And Argument.

8

1. The Court Has Discretion to Allow Dollar Tree to Present and Argue Its

9

Case First at the Liability Phase of Trial.

10

Federal courts need not follow the traditional notion that the plaintiff automatically has the

11 right to open first, present evidence first, and close last. Rather, the order of proof is within the trial

12 court’s discretion and can be varied as the occasion requires. 75 Am. Jur. 2d Trial § 275 (2010).

13 Customarily, the party with the burden of proof is given the benefit of opening and closing the

14 argument. Id. § 276; 53 A.L.R. Fed. 900 (2009). Consequently, federal courts have allowed the

15 defendant to open first, present evidence first, and close last where the defendant has the burden of

16 proof as to the principal disputed issue. See, e.g., Latino Food Marketers, LLC v. Ole Mexican

17 Foods, Inc., No. 03-C-0190-C, 2004 U.S. Dist. LEXIS 5239, at * 2 (W.D. Wis. Mar. 30, 2004)

18 (allowing defendant in a contract dispute to present evidence first on an affirmative defense because

19 it was the principal disputed issue at trial); Montwood Corp. v. Hot Springs Theme Park Corp., 766

20 F.2d 359, 364 (8th Cir. 1985) (affirming the district court’s decision to allow defendant to proceed

21 first because defendant bore the burden of proof on the disputed issue). Further, “fairness requires

22 that the party with the burden of proof should have the first and last opportunity to persuade the jury

23 of its position. When that party is the defendant, it makes sense to give that privilege to the

24 defendant.” Latino Food Marketers, at * 3-4.

25

The Court’s discretion to control the order of proof at trial is well established. U.S. v. Zemek,

26 634 F.2d 1159, 1169 (9th Cir. 1980) (“This court has repeatedly held that the order of proof is within

27 the sound discretion of the trial court”); U.S. v. Downing, 753 F.2d 1224, 1241 (3d Cir. 1985) (“the

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53(e)(3).” See Advisory Committee Notes to the 2003 Amendment to Rule 53 (emphasis added).

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1 control of the order of proof at trial is a matter committed to the discretion of the trial judge”);

2 Lentner v. Lieberstein, 279 F.2d 385, 388 (7th Cir. 1960) (“The conduct of a trial, the order of

3 introducing evidence, and the time when it is to be introduced are matters vested in the sound

4 discretion of the trial court”) (internal quotations omitted); FED. R. EVID. 611(a) (court may control

5 presentation of evidence so as to make presentation “effective for the ascertainment of truth” and to

6 avoid “needless consumption of time”).

7

Accordingly, Dollar Tree respectfully requests that the Court exercise its discretion by

8 ordering that Dollar Tree proceed first at trial.

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D. Dollar Tree Should Be Permitted to Proceed First Because It Bears the Burden of Proof as to the Central Issue of this Litigation.
It is undisputed that Dollar Tree bears the burden of proving its exemption defense at trial.

See Ramirez, 20 Cal. 4th at 794-95 (1999) (“the assertion of an exemption from the overtime laws is

considered to be an affirmative defense, and therefore the employer bears the burden of proving the

employee’s exemption”); Johaness, 2001 U.S. Dist. LEXIS 25409, at * 38 (C.D. Cal. June 25, 2001)

(“Under the FLSA and California law, the burden is placed squarely upon the employer to establish

the application of any exemption to an employee”).

To effectively present its affirmative defense, Dollar Tree should be permitted to present

evidence and argument first during Phase One. Courts often reverse the standard order for

presenting evidence and argument at trial in overtime compensation cases where the primary issue

for trial is the defendant’s exemption defense. For example, in Pellegrino, 182 Cal. App. 4th at 285,

the court bifurcated trial on the defendant’s exemption defense and ordered the defendant to proceed

first because the defendant had the burden of proof. Similarly, in Goldman, 2005 U.S. Dist. LEXIS

9174, at *4-7, an executive exemption collective/class action involving retail sales managers, the

court granted the defendant’s request to open first, present evidence first, and close first. In granting

the defendant’s request, the court noted that the plaintiffs’ burden to make a prima facie showing

that he and all other members of the class worked more than 40 hours per week without receiving overtime compensation is not as significant as the employer’s burden to dispute liability.11 Id. at * 6.

11 In Goldman, trial of the amount of plaintiffs’ alleged damages—if liability was established—was to be handled in a bifurcated portion of the trial, where plaintiffs would proceed first, in part to

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1 See also, Moylan v. Meadow Club, Inc., 979 F.2d 1246, 1251 (7th Cir. 1992) (affirming the district

2 court’s decision to allow defendant to go first and last during closing arguments where defendant

3 had the burden of proof on its FLSA exemption defense); Reyes v. Texas EZPawn, L.P., No. V-03-

4 128, 2007 U.S. Dist. LEXIS 78846, at * 7 (S.D. Tex. Oct. 24, 2007) (granting defendant’s pre-trial

5 request to open and close first on similar grounds).

6

Like Pellegrino, Goldman, Moylan, and Reyes, the issue here is whether an exemption

7 applies to the CMs. In those cases, the defendants were permitted to proceed first with their case-in-

8 chief and, therefore, Dollar Tree respectfully requests the same opportunity.

9

E. Dollar Tree Will Stipulate That Each Class Member Worked, During At Least

One Week In The Class Period, Hours Over Eight Hours In A Work Day

10

And/Or Over Forty Hours In A Work Week.

11

California courts recognize the principle that, in order to recover overtime compensation, the

12 plaintiffs must meet their initial burden of showing that they indeed worked overtime hours. Bell,

13 115 Cal. App. 4th at 749-750; Lopez, 2010 U.S. Dist. LEXIS 68868, at * 14-15. To narrow the

14 triable issues Dollar Tree will stipulate that each CM worked, during at least one week in the Class

15 Period, hours over eight hours in a work day and/or over forty hours in a work week. Thus, Plaintiff 16 Runnings and the CMs are relieved of their burden in Phase One.12 As a consequence, if Dollar Tree

17 is unable to prove its exemption defense, the CMs will be entitled to recover overtime compensation 18 upon proof of overtime hours worked.13 If Dollar Tree is able to carry its burden then, as described

19 above, the damages issues are moot. Because Dollar Tree will stipulate to the CMs’ Phase One

20 burden, as described above, there is no rational basis for refusing Dollar Tree’s request to proceed

21 first in its presentation and argument at trial.

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“avoid prejudice to RadioShack” in presenting its case-in-chief on liability. Goldman, 2005 U.S. Dist. LEXIS 9174, at * 3-4. 12 In Goldman and Reyes, the defendants stipulated to the elements of plaintiffs’ prima facie claim under the FLSA, including that plaintiffs each worked some overtime hours, which led the courts in both cases to set the order of presentation and allow the defendants to open first, present evidence first, and give closing arguments first and rebuttal last. See Reyes, 2007 U.S. Dist. LEXIS 78846, at * 10; Goldman, 2005 U.S. Dist. LEXIS 9174, at * 6-7. 13 During the damages phase of trial, CMs must be able to produce sufficient evidence to permit a reasonable inference as to the amount and extent of uncompensated overtime work. 1-5 Susan Spurlark, California Employment Law § 5.72 (2010), citing Hernandez, 199 Cal. App. 3d at 727. If CMs are able to provide such evidence, the burden will shift to Dollar Tree to negate the inference drawn from the CMs’ evidence. Id.

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1

F. Dollar Tree Will Suffer Prejudice If Plaintiff Runnings Is Allowed to Proceed

First.

2 To try Phase One using the typical order of presentation and argument will prejudice Dollar

3 Tree’s ability to prove its case. The CMs will call witnesses and attempt to rebut a case-in-chief that

4 has not been presented and on which Dollar Tree bears the burden of proof. Moreover, during cross-

5 examination of the CMs’ witnesses, Dollar Tree will be forced to extract admissions regarding each

6 of the prongs of the exemption defense without first explaining to the jury what its expectations for

7 the Store Manager position were or what is necessary to establish exempt status under California

8 law. That sequence likely will confuse the jury who would begin the trial hearing evidence meant to

9 counter Dollar Tree’s exemption evidence before understanding what the evidence shows. On the

10 other hand, the CMs suffer no prejudice from this sequence of presentation because Dollar Tree will

11 stipulate to their Phase One burden and because the CMs will can rebut Dollar Tree’s evidence

12 during their turn at presenting evidence.

13 G. Proposed Order of Presentation and Argument.
14 Ease of presentation and fairness dictate that Dollar Tree be allowed to establish its burden of

15 proof in Phase One by presenting its case to the jury first. Therefore, Dollar Tree requests that the

16 Court exercise its discretion to set the order of presentation and argument during Phase One as

17 follows:

18

1. Dollar Tree gives its opening statement first. See Reyes, 2007 U.S. Dist.

LEXIS 78846, at * 10; Goldman, 2005 U.S. Dist. LEXIS 9174, at * 7.

19

2. Dollar Tree presents its case-in-chief first, and has the opportunity to offer

20

evidence in rebuttal after Plaintiffs’ rest. Reyes, 2007 U.S. Dist. LEXIS

78846, at * 10 (“the Court will permit Defendant to open and close first and

21

initiate the presentation of evidence”) (emphasis added).

22

3. Dollar Tree makes its closing argument first, and has the opportunity to rebut

Plaintiffs’ closing argument. See id.; Moylan, 979 F.2d at 1251.

23

24

Dollar Tree does not seek an alteration of the order of presentation in Phase Two because, as

25 described above, Plaintiff Runnings and the CMs bear the burden of proof with respect to damages.

26 III. CONCLUSION

27

The nature of this litigation requires Dollar Tree to prove that it properly classified Class

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Members as exempt executives under California law. Here, Dollar Tree plans to do so by presenting

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1 evidence of, among other things, its exempt status expectations for the California Store Manager

2 position during the Class Period and evidence that its expectations were realistic. For example,

3 Dollar Tree corporate witnesses will explain Dollar Tree’s business model, describe the training

4 provided to SMs during the Class Period, and explain to the jury what Defendant expected the CMs

5 to do to manage their stores. Dollar Tree will also present the testimony of individual SMs who both

6 understood and complied with Dollar Tree’s management expectations throughout the Class Period.

7 In addition, Dollar Tree will show the jury it received more than 25,000 “yes” certification responses

8 during the Class Period indicating that the vast majority of its California SMs repeatedly indicated

9 that they were performing their jobs in accordance with Dollar Tree’s management expectation.

10 Hence, to recover damages, the Class Members must rebut this evidence and establish that

11 misclassification was the rule rather than the exception at Dollar Tree.

12

There is no reason to complicate the trial and prejudice Dollar Tree by prematurely forcing

13 the jury to endure the presentation of damages evidence. Bifurcation of the liability and damages

14 phases will set the stage for a fair, economical, and expeditious trial. Dollar Tree therefore

15 respectfully requests that it not be required to introduce evidence or defend against testimony on

16 damages—which have no relevance as to liability—until such time, if any, that a jury determines

17 such liability exists.

18

In addition, because Dollar Tree bears the burden of proving the applicability of the

19 executive exemption during the liability phase of trial, Dollar Tree respectfully requests that the

20 Court set the order of presentation and argument as detailed herein.

21 Dated: February 3, 2011
22

Respectfully submitted.

23

24

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Firmwide:99576729.3 061603.1004
DT’S MOTION TO BIFURCATE AND TO ALTER THE PRESENTATION OF THE ORDER OF PROOF AT TRIAL

/s/ Matthew Vandall MATTHEW VANDALL LITTLER MENDELSON A Professional Corporation Attorneys for Defendant DOLLAR TREE STORES, INC.

12.

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United States District Court
For the Northern District of California

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

6

7 MIGUEL A. CRUZ, and JOHN D.

) Case Nos. 07-2050 SC

HANSEN, individually and on behalf ) 8 of all others similarly situated, )

07-4012 SC

9

Plaintiffs,

) )

ORDER GRANTING IN PART AND

) DENYING IN PART DEFENDANT'S

10

v.

) MOTION TO DISMISS CLAIMS OF

) CLASS MEMBERS WHO FAILED TO

11 DOLLAR TREE STORES, INC.,

12

Defendant.

) RESPOND TO DISCOVERY

) )

REQUESTS

)

13

)

ROBERT RUNNINGS, individually, and )

14 on behalf of all others similarly )

situated,

)

15

)

Plaintiffs,

)

16

)

v.

)

17

)

DOLLAR TREE STORES, INC.,

)

18

)

Defendant.

)

19

20 I. INTRODUCTION

21

This matter comes before the Court on the Motion to Dismiss

22 Claims of Class Members Who Failed to Respond to Defendant's

23 Discovery filed by Defendant Dollar Tree Stores, Inc. ("Defendant"

24 or "Dollar Tree"). ECF No. 259 ("Mot.").1 Plaintiffs Robert

25 Runnings, Miguel Cruz, and John Hansen (collectively, "Plaintiffs")

26 1 Cruz v. Dollar Tree, Case No. 07-2050 ("Cruz Action"), and 27 Runnings v. Dollar Tree, Case No. 07-4012 ("Runnings Action"), have
been consolidated. Unless otherwise noted, all docket numbers in 28 this Order refer to docket entries in the Cruz Action.

Case3:07-cv-02050-SC Document282 Filed03/08/11 Page2 of 22

United States District Court
For the Northern District of California

1 filed an Opposition, and Defendant submitted a Reply. ECF Nos. 268

2 ("Opp'n"), 274 ("Reply"). For the following reasons, the Court

3 GRANTS IN PART and DENIES IN PART the Motion.

4

5 II. BACKGROUND

6

The Court assumes the parties are familiar with the procedural

7 and factual background of this dispute, which the Court set out in

8 its Order Granting the Amended Motion for Class Certification. ECF

9 No. 107 ("May 26, 2009 Order"). Plaintiffs allege they were

10 improperly classified as exempt employees. See Runnings Action,

11 ECF No. 1 ("Runnings Compl."); Cruz Action, ECF No. 23 ("Cruz Am.

12 Compl."). As a result, Plaintiffs allege that Dollar Tree failed

13 to pay them overtime compensation and failed to provide meal and

14 rest breaks, in violation of California and federal law. Id.

15

In its May 26, 2009 Order, the Court certified a class

16 consisting of 718 store managers ("SMs") who worked in 273 retail

17 locations. On September 9, 2010, the Court granted in part

18 Defendant's Motion to Decertify the Class. ECF No. 232 ("Sep. 9,

19 2010 Order"). As a result, the class now consists of 273 members

20 and is currently defined as "all persons who were employed by

21 Dollar Tree Stores, Inc. as California retail store managers at any

22 time on or after December 12, 2004, and on or before May 26, 2009,

23 and who responded 'no' at least once on Dollar Tree's weekly

24 payroll certifications." Mot. at 7.

25

On March 25, 2010, the Court ordered that Defendant could

26 serve each class member with ten Special Interrogatories and ten

27 Requests for Production of Documents. ECF No. 150 ("Mar. 25, 2010

28 Order"). On June 9, 2010, Magistrate Judge Spero resolved disputes

2

Case3:07-cv-02050-SC Document282 Filed03/08/11 Page3 of 22

United States District Court
For the Northern District of California

1 among the parties as to the form of the discovery requests and

2 ordered that the modified interrogatories and requests for

3 production be sent to class members. ECF No. 184 ("June 9, 2010

4 Order"). Judge Spero's order provided that "[a]ll responses to

5 these document requests (including documents produced) and

6 interrogatories are due on or before July 16, 2010." Id. at 2.

7 Only 215 of the then 718 class members responded by the deadline,

8 and eight more responded shortly thereafter. Mot. at 8. On

9 October 14, 2010, upon a motion filed by Defendant, Judge Spero

10 ordered that a warning notice be sent to all class members who had

11 not responded to the discovery requests indicating that they must

12 respond by October 29, 2010 and that Defendant was seeking

13 dismissal of their claims due to their failure to respond. ECF No.

14 247 ("Oct. 14, 2010 Order") at 1. Defendant received responses

15 from twelve additional class members after this warning notice was

16 sent. Mot. at 8.

17

On November 19, 2010, the Court denied Defendant's motion to

18 dismiss the claims of class members who failed to respond to

19 discovery but stated that "the Court will entertain a renewed

20 motion to dismiss after class members are provided with one final

21 opportunity to respond." ECF No. 254 ("Nov. 19, 2010 Order") at 3.

22 The Court ordered Plaintiffs' counsel to send another written

23 notice to non-responsive class members advising them that the Court

24 would dismiss them from the class if they did not respond to the

25 discovery requests within twenty-one days of Plaintiffs' mailing

26 the notice. Id. Plaintiffs mailed the final warning letter on

27 November 23, 2010. Mot. at 9. As of December 17, 2010, only

28 thirty-two additional class members had responded. Id.

3

Case3:07-cv-02050-SC Document282 Filed03/08/11 Page4 of 22

United States District Court
For the Northern District of California

1

In the instant Motion, Defendant asks the Court to issue

2 sanctions under Federal Rule of Civil Procedure 37(b)(2)(A)(v) by

3 dismissing the claims of the class members who did not respond to

4 Defendant's discovery requests. The Motion initially sought

5 dismissal of 112 class members. However, in support of their

6 Opposition, Plaintiffs filed a declaration indicating that one of

7 the class members whom Defendant's Motion sought to dismiss,

8 Claudia Garcia ("Garcia"), had recently responded to the discovery 9 requests. DeSario Decl. ¶ 10.2 Defendant then agreed to drop

10 Garcia from the list of class members it seeks to dismiss. Reply

11 at 2 n.3. Plaintiffs later filed a supplemental declaration in

12 support of their Opposition. See "Supp. DeSario Decl." In the

13 supplemental declaration, Plaintiffs point out that Defendant's

14 Motion erroneously seeks to dismiss two class members, Ruth E.

15 Phipps ("Phipps") and Thomas Shaff ("Shaff"), who did in fact

16 respond to the discovery requests. Id. ¶¶ 4-6. Defendant admits

17 its mistake and has agreed to drop Phipps and Shaff from the

18 Motion. ECF No. 276 ("Def.'s Obj. to DeSario Supp. Decl.") at 1.

19 These developments leave 109 class members who remain subject to

20 Defendant's Motion.

21

Plaintiffs' supplemental declaration also indicates that

22 twenty of the final warning letters sent to class members were

23 returned as undeliverable. Supp. DeSario Decl. ¶ 7. Plaintiffs

24 ask the Court to exclude these class members from Defendant's

25 Motion on the grounds that they did not receive the final warning

26
27 2 Molly A DeSario, attorney for Plaintiffs, filed a declaration ("DeSario Decl."), ECF No. 269, and a supplemental declaration
28 ("Supp. DeSario Decl."), ECF No. 275, in support of Plaintiffs' Opposition.

4

Case3:07-cv-02050-SC Document282 Filed03/08/11 Page5 of 22

United States District Court
For the Northern District of California

1 letter. Id. at ¶ 8. Defendant argues that the Court should not

2 entertain this argument because Plaintiffs' supplemental

3 declaration violates Civil Local Rule 7-3(d). Def.'s Obj. to

4 DeSario Supp. Decl. at 1.

5

6 III. Legal Standard

7

Federal Rule of Civil Procedure 37(b)(2)(A)(v) authorizes a

8 court to dismiss an action or proceeding in whole or in part if a

9 party "fails to obey an order to provide or permit discovery."

10 Rule 37(d)(3) also authorizes dismissal as a sanction for a party's

11 failure to respond to interrogatories. The decision whether to

12 impose sanctions under Rule 37 is within the district court's

13 discretion. Halaco Eng'g Co. v. Costle, 843 F.2d 376, 379 (9th

14 Cir. 1988).

15

The Ninth Circuit has established a five-part test for

16 determining whether a case-dispositive sanction is warranted for a

17 party's failure to comply with a discovery order. A district court

18 must consider the following:

19

(1) the public's interest in expeditious

resolution of litigation; (2) the Court's need to

20

manage its docket; (3) the risk of prejudice to

the party seeking sanctions; (4) the public

21

policy favoring disposition of cases on their

merits; [and] (5) the availability of less

22

drastic actions.

23 In Re Exxon Valdez, 102 F.3d 429, 433 (9th Cir. 1996). "The first

24 two of these [five] factors favor the imposition of sanctions in

25 most cases, while the fourth cuts against . . . a dismissal

26 sanction. Thus the key factors are prejudice and the availability

27 of lesser sanctions." Henry v. Gill Indus., Inc., 983 F.2d 943,

28 948 (9th Cir. 1993) (internal citation omitted) (ellipsis in

5

Case3:07-cv-02050-SC Document282 Filed03/08/11 Page6 of 22

United States District Court
For the Northern District of California

1 original). The Ninth Circuit has also established three subparts

2 for the fifth factor (the availability of less drastic sanctions):

3 (1) whether the court considered lesser sanctions; (2) whether it

4 tried the lesser sanctions; and (3) whether it warned the

5 recalcitrant party about the possibility of case dispositive

6 sanctions. Connecticut Gen. Life Ins. Co. v. New Images of Beverly

7 Hills, 482 F.3d 1091, 1096 (9th Cir. 2007). The test is not

8 mechanical. Rather, "[i]t provides the district court with a way

9 to think about what to do, not a set of conditions precedent for

10 sanctions or a script that the district court must follow." Id.

11 Lastly, because dismissal of a plaintiff's action is a severe

12 sanction, the Ninth Circuit has held that dismissal is only

13 justified by a showing of "willfulness, bad faith, and fault." Id.

14

15 IV. DISCUSSION

16

A. The Court Denies Defendant's Motion With Respect to the

17

Twenty Plaintiffs Who Did Not Receive the Final Warning

18

The Court agrees with Plaintiffs that the claims of the twenty

19 class members whose final warning letters were returned as

20 undeliverable should not be dismissed. Defendant argues that the

21 Court should not consider the evidence that these class members did

22 not receive the warning letters because Plaintiffs' supplemental

23 declaration violates Civil Local Rule 7-3(d). Civil Local Rule 7-

24 3(d) prohibits the filing of additional papers without court

25 approval once a reply brief has been filed, except in certain

26 circumstances not present here. Defendant argues that Plaintiffs

27 should have submitted the evidence of failed delivery with their

28 Opposition.

6

Case3:07-cv-02050-SC Document282 Filed03/08/11 Page7 of 22

United States District Court
For the Northern District of California

1

Plaintiffs should have sought leave of the Court before filing

2 their supplemental declaration. Nevertheless, in the interest of

3 fairness to the class, the Court excuses the late filing and

4 failure to seek leave of the Court and considers the supplemental

5 declaration. The supplemental declaration states that the final

6 warning letters mailed to twenty of the class members were returned

7 as undeliverable, and Plaintiffs have attached copies of the

8 envelopes returned as undeliverable. Supp. DeSario Decl. ¶ 7, Ex.

9 F. The Court's November 19, 2010 Order required that a final

10 warning letter be sent because the Court felt that class members

11 should be given "one final opportunity to respond." Nov. 19, 2010

12 Order at 3. Because the twenty class members at issue did not

13 receive this final opportunity, the Court declines to dismiss their

14 claims. Accordingly, Defendant's Motion to Dismiss is DENIED with 15 regard to these class members.3

16

B. The Court Grants the Motion With Regard to the Remaining

17

Eighty-Nine Class Members Who Did Not Respond

18

After the removal of Garcia, Shaff, and Phipps from

19 Defendant's Motion by agreement of the parties, and in light of

20 this Court's refusal to dismiss the claims of the twenty class

21 members who did not receive the final warning letter, 89 of the

22 original 112 class members who were originally the subject of

23 Defendant's Motion remain to be addressed.

24

1. The Ninth Circuit's Five-Part Test Supports Dismissal

25

Four of the five factors established by the Ninth Circuit for

26 determining whether case-dispositive sanctions are warranted favor

27

28 3 The names of the class members with regard to whom Defendant's Motion is DENIED are attached to this Order as Exhibit A.

7

Case3:07-cv-02050-SC Document282 Filed03/08/11 Page8 of 22

United States District Court
For the Northern District of California

1 dismissal here. The first and second factors -- the public's

2 interest in expeditious resolution of litigation and the Court's

3 need to manage its docket -- favor granting the motion so as to not

4 delay this nearly four-year-old case any further. With regard to

5 the third factor, Defendant has shown that it will suffer prejudice

6 in its ability to defend the case if the non-responsive class

7 members' claims are not dismissed. The lack of discovery responses

8 would make it particularly difficult for Defendant to determine

9 which class members to call as adverse witnesses or rebuttal

10 witnesses at trial. Plaintiffs argue that this concern is

11 unwarranted because Plaintiffs have already committed to providing

12 full discovery for the class members who testify at trial. Opp'n

13 at 15. This argument fails because one of the reasons Defendant

14 seeks the discovery responses is to help it determine precisely

15 which class members should testify at trial.4 Defendant's lack of

16 access to the discovery responses of the eighty-nine class members

17 would also prejudice Defendant by preventing it from providing its

18 experts with information that could prove critical to their

19 analysis.

20

As is always the case with a motion seeking dismissal

21 sanctions, the fourth factor -- the policy favoring the disposition

22 of cases on their merits -- weighs against granting the instant

23 motion. Nevertheless, in this case the other factors support

24 granting the motion and outweigh the policy in favor of disposing

25
26 4 Plaintiffs similarly argue that if the Court declines to deny Defendant's request for terminating sanctions it should at least
27 continue the motion until after the selection of which class members will testify at trial. Opp'n at 17. Again, Plaintiffs
28 miss the point that the discovery responses are necessary to guarantee the fairness of that selection process.

8

Case3:07-cv-02050-SC Document282 Filed03/08/11 Page9 of 22

United States District Court
For the Northern District of California

1 of cases on their merits.

2

The Court has considered lesser sanctions and finds that they

3 would not be effective. Monetary sanctions would be difficult, if

4 not impossible, to collect from the eighty-nine class members, and

5 would do nothing to ameliorate the prejudice that Defendant would

6 suffer as a result of the class members' failure to respond. The

7 sanction of claim preclusion, authorized by Rule 37(b)(2)(A)(ii),

8 is not a feasible option in this case either. Because the

9 discovery at issue covers all of Plaintiffs' claims, precluding

10 Plaintiffs from presenting the affected claims would be tantamount

11 to dismissal. Moreover, the Court notes that the non-responsive

12 class members received multiple warnings about the possibility of

13 case-dispositive sanctions. The Court notes that it is not

14 imposing the most severe sanction available. Rather, it dismisses

15 the claims of the class members without prejudice, and will toll

16 the statute of limitations for 120 days from this Order, so that

17 class members who wish to do so may pursue their individual claims.

18 The Court finds that it is imposing the least severe sanction that

19 will be effective in this case.

20

Lastly, the Court finds that the requisite showing of

21 willfulness, bad faith, and fault has been satisfied. All that is

22 required to demonstrate willfulness, bad faith, and fault is

23 "disobedient conduct not shown to be outside the control of the

24 litigant." Henry, 983 F.2d at 948. The non-responsive class

25 members have engaged in such disobedient conduct by repeatedly

26 ignoring letters instructing them to respond to discovery and

27 warning them that they would face dismissal of their claims if they

28

9

Case3:07-cv-02050-SC Document282 Filed03/08/11 Page10 of 22

United States District Court
For the Northern District of California

1 failed to respond.5

2

2. Plaintiffs' Arguments in Opposition

3

Plaintiffs argue that Defendant's Motion should be denied

4 because: (1) it is procedurally improper; (2) it is unsupported by

5 relevant case law; (3) Defendant has failed to show willfulness,

6 bad faith, or fault; and (4) Defendant will not suffer prejudice if

7 the Motion is denied. The analysis above disposes of the latter

8 two arguments, and the Court finds the former two unpersuasive.

9

Plaintiffs' various procedural arguments are unavailing.

10 First, they contend that the Motion is improper because it does not

11 comply with the requirements for a motion to dismiss under Federal

12 Rule of Civil Procedure 12(b)(6). However, Defendant does not seek

13 to dismiss a complaint for failure to state a claim. The Motion's

14 caption makes clear that Defendant seeks dismissal as a sanction

15 pursuant to Rule 37. Rule 37 expressly authorizes dismissal as a

16 sanction for failure to respond to a discovery order. Fed. R. Civ.

17 P. 37(b)(2)(A)(v). Plaintiffs apparently contend that the Motion

18 should be denied because it contains the words "motion to dismiss"

19 in the caption instead of "motion for sanctions." This argument

20 borders on frivolity.

21

Next, Plaintiffs argue that Rule 37 only authorizes dismissal

22 of "parties" and cannot be invoked to dismiss absent class members

23 5 Plaintiffs argue that Defendant has not shown that the non24 responsive class members ignored the discovery requests and warning
letters because Defendant has not produced evidence that the class 25 members actually received the discovery requests and warning
letters. This argument fails because "[m]ail that is properly 26 addressed, stamped, and deposited into the mail is presumed to be
received by the addressee. . . The presumption can only be overcome 27 by clear and convincing evidence that the mailing was not, in fact,
accomplished." In re Bucknum, 951 F.2d 204, 207 (9th Cir. 1991). 28 Plaintiffs have provided no evidence that the letters were not
received.

10

Case3:07-cv-02050-SC Document282 Filed03/08/11 Page11 of 22

United States District Court
For the Northern District of California

1 who, Plaintiffs contend, are not "parties." As the Ninth Circuit

2 has explained, class members are treated as parties for some

3 procedural purposes but are not treated as parties for others. In

4 re Cement Antitrust Litig., 688 F.2d 1297, 1309 (9th Cir. 1982).

5 There is a circuit split with regard to whether class members are

6 considered parties for Rule 37 purposes, and the Ninth Circuit has

7 not ruled on the issue. Id. The strongest support for Plaintiffs'

8 argument comes from the Eleventh Circuit. In Wainwright v. Kraftco

9 Corp., 54 F.R.D. 532, 534 (N.D. Ga. 1972), the court held that

10 class members were not parties and were thus not subject to

11 discovery under the Federal Rules. The court noted, "[n]othing in

12 Rule 23 suggests that class members are deemed 'parties' . . .

13 Since discovery [pursuant to Rule 33 and Rule 34] may be had only

14 against 'parties,' the court does not believe such discovery may be

15 had from [class members other than the party-plaintiffs]." The

16 court further stated that it perceived "serious constitutional

17 problems with a decision that would dismiss with prejudice from a

18 lawsuit people who were never made parties." Id.

19

By contrast, the Seventh Circuit has decided that class

20 members are "parties" for the purposes of Rule 37. See Brennan v.

21 Midwestern United Life Ins. Co., 450 F.2d 999, 1004 (7th Cir.

22 1971). The movants in Brennan argued, as Plaintiffs do here, that

23 class members are not "parties" and consequently are not subject to

24 the "party" discovery procedures set forth in Rules 33 and 34. Id.

25 Noting that the question was a difficult one, the Brennan court

26 rejected this argument. Id. As further discussed below, the court

27 invoked Rule 37 and dismissed with prejudice the claims of class

28 members who failed to respond to court-authorized discovery

11

Case3:07-cv-02050-SC Document282 Filed03/08/11 Page12 of 22

United States District Court
For the Northern District of California

1 requests. The court reasoned that, while class members should not

2 be required to submit to discovery "as a matter of course,"

3 requiring them to respond to discovery in some cases is warranted.

4 Id. In particular, the court reasoned that, in cases where

5 discovery from class members is necessary or helpful to the proper

6 adjudication of the suit, it should be allowed so long as it is not

7 used as a tactic to reduce the number of claimants and adequate

8 precautionary measures are taken to insure that class members are

9 not misled or confused. Id. at 1004-05.

10

The Court finds the Brennan court's reasoning persuasive.

11 Here, there is no evidence that Defendant's purpose in propounding

12 the discovery requests was to reduce the number of claimants.

13 Furthermore, Judge Spero oversaw the crafting of the requests to

14 insure that they were not misleading or confusing. Moreover,

15 unlike the district court order at issue in Brennan, the Court here

16 dismisses the class members' claims without prejudice and tolls the

17 statute of limitations so that they may proceed with individual

18 claims if they so desire. This approach ameliorates the

19 "constitutional problems with a decision that would dismiss [class

20 members] with prejudice" that concerned the Kraftco court. 54

21 F.R.D. at 534.

22

Plaintiffs next contend that the absent class members have not

23 disobeyed a court order per se and therefore cannot be subject to

24 sanctions under Rule 37, which provides for sanctions if a party

25 "fails to obey an order to provide or permit discovery." Fed. R.

26 Civ. P. 37(b)(2)(A). Plaintiffs argue that the Court's prior

27 orders simply instructed class counsel to send certain

28 communications to class members and did not order the class members

12

Case3:07-cv-02050-SC Document282 Filed03/08/11 Page13 of 22

United States District Court
For the Northern District of California

1 to do anything. Plaintiffs contend that Rule 37 does not authorize

2 the Court to impose sanctions on the non-responsive class members

3 because Plaintiffs' counsel, not the class members, was the subject

4 of the order. This argument lacks merit. On June 9, 2010, Judge

5 Spero explicitly ordered all class members to respond to discovery.

6 ECF No. 201 (Transcript of June 9, 2010 hearing) at 29:18-21 ("All

7 class members are required to respond by July 16th."). Moreover,

8 the implication of Plaintiffs' argument is that, even though this

9 Court authorized the sending of discovery requests to class members

10 and instructed class counsel to warn them that "the Court will

11 dismiss them from the class if they do not respond," the Court in

12 fact lacks the power to back words with actions because it did not

13 issue an order with each class member's name on it. Nov. 19, 2010

14 Order at 3. The Court finds this reading of Rule 37(b)(2) too

15 narrow. The Court further notes that Rule 37(d)(3), which

16 authorizes the Court to impose dismissal as a sanction for failure

17 to respond to interrogatories, provides an alternative basis for

18 dismissal.

19

The last of Plaintiffs' procedural arguments is that requiring

20 class members to respond to discovery imposes a de facto opt-in

21 scheme in contravention of the opt-out scheme established by

22 Federal Rule of Civil Procedure 23. This argument amounts to the

23 contention that the Court should not have permitted Defendant to

24 propound discovery upon the class members in the first place. The

25 Court already ruled on that issue in its March 25, 2010 Order

26 allowing discovery to be sent and will not revisit that decision

27 here.

28

Plaintiffs' non-procedural arguments are similarly

13

Case3:07-cv-02050-SC Document282 Filed03/08/11 Page14 of 22

United States District Court
For the Northern District of California

1 unpersuasive. They contend that the case law does not support

2 Defendant's motion. However, they provide no controlling authority

3 to support their argument that Rule 37 does not authorize dismissal

4 of class members for failure to respond to discovery requests.

5 Indeed, neither Plaintiffs nor Defendant points to controlling

6 authority on this issue. The primary cases from this circuit

7 discussed by the parties deal with whether discovery directed to

8 absent class members should be allowed in the first place. See

9 Tierno v. Rite Aid Corp., 2008 U.S. Dist. LEXIS 112461, *20 (N.D.

10 Cal. July 8, 2008) (denying defendant's request to depose one

11 hundred class members); McPhail v. First Command Fin. Planning,

12 Inc., 251 F.R.D. 514, 515 (S.D. Cal. 2008) (denying defendant's

13 request to send discovery to absent class members). Again, this

14 Court has already permitted discovery to be sent to class members

15 and will not revisit that decision.

16

The Court again finds the Seventh Circuit's decision in

17 Brennan persuasive authority in favor of dismissal. The absent

18 class members in Brennan had been sent the written discovery along

19 with a memorandum explaining the reasons for the discovery

20 requests, advising them of the deadline for responding and

21 encouraging them to seek the advice of counsel. 450 F.2d at 1002.

22 The court subsequently issued an order to show cause why the claims

23 of class members who had not responded should not be dismissed with

24 prejudice. Id. Plaintiffs' counsel sent the non-responsive class

25 members copies of the show-cause order along with a letter warning

26 them that their claims would be dismissed if they did not respond.

27 Id. When the deadline for responding passed, the court granted the

28 defendants' motion to dismiss with prejudice the claims of the non-

14

Case3:07-cv-02050-SC Document282 Filed03/08/11 Page15 of 22

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For the Northern District of California

1 responsive class members. Id. The Seventh Circuit affirmed,

2 noting that "movants ignored repeated requests that they comply

3 with the discovery orders." Id. at 1004 n.2.

4

Here, as in Brennan, the non-responsive class members ignored

5 repeated requests that they comply with discovery. Moreover, this

6 Court's ruling is substantially more lenient that the court's in

7 Brennan. While the class members in Brennan were sent a single

8 warning letter, the class members here received two warning letters

9 in addition to the initial discovery requests. More importantly,

10 unlike the Brennan court, this Court today dismisses without

11 prejudice the claims of the non-responsive class members.

12

Plaintiffs' attempts to distinguish Brennan are not

13 compelling. They note that the class members dismissed in Brennan

14 were subject to a court order to show cause, and plaintiffs'

15 counsel mailed each class member a copy of that order. They

16 contend that the gravity of a class member receiving a court order

17 with his or her name on it would have a greater impact that a

18 warning notice from class counsel. While this may be so, the Court

19 finds multiple letters from the class members' own attorney warning

20 them of the possibility of dismissal should have been a sufficient

21 incentive to compel a response.

22

Plaintiffs also contend that the class members in Brennan

23 received actual notice, whereas here Defendant has allegedly not

24 shown that the class members actually received the multiple warning

25 letters. This argument fails. The Ninth Circuit has made clear

26 that "[m]ail that is properly addressed, stamped, and deposited

27 into the mail is presumed to be received by the addressee . . . The

28 presumption can only be overcome by clear and convincing evidence

15

United States District Court
For the Northern District of California

Case3:07-cv-02050-SC Document282 Filed03/08/11 Page16 of 22
1 that the mailing was not, in fact, accomplished." In re Bucknum, 2 951 F.2d 204, 207 (9th Cir. 1991). Plaintiffs have provided no 3 evidence that the eighty-nine class members at issue did not 4 receive the discovery requests and warning notices. 5 /// 6 /// 7 /// 8 /// 9 /// 10 /// 11 /// 12 /// 13 /// 14 /// 15 /// 16 /// 17 /// 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 ///
16

Case3:07-cv-02050-SC Document282 Filed03/08/11 Page17 of 22

United States District Court
For the Northern District of California

1 V. CONCLUSION

2

For the foregoing reasons, the Court GRANTS IN PART and DENIES

3 IN PART the Motion to Dismiss Claims of Class Members Who Failed to

4 Respond to Discovery filed by Defendant Dollar Tree Stores, Inc.

5 The Court DENIES the Motion with regard to the twenty class

6 members, listed in Exhibit A attached to this Order, whose final

7 warning letters were returned as undeliverable. The Court GRANTS

8 the Motion with regard to the remaining eighty-nine class members,

9 listed in Exhibit B attached to this Order, named in the Motion.

10 The claims of those eighty-nine class members are hereby dismissed

11 without prejudice.

12

The Court also invokes its equity powers to toll the statute

13 of limitations on the claims of the eighty-nine class members whose

14 claims are dismissed in order to preserve their right to pursue

15 individual claims against Dollar Tree. The statute of limitations

16 is hereby tolled for 120 days from the date of this Order.

17 Plaintiffs' counsel shall so notify the affected class members

18 within ten days of this Order and shall file a declaration with the

19 Court within thirty days of this Order confirming that they have

20 done so.

21

IT IS SO ORDERED.

22

23

Dated: March 8, 2011

24

UNITED STATES DISTRICT JUDGE

25

26

27

28

17

Case3:07-cv-02050-SC Document282 Filed03/08/11 Page18 of 22

United States District Court
For the Northern District of California

1

EXHIBIT A

2

3 The Court DENIES Defendant's Motion to Dismiss with regard to the

4 following class members:

5

6

1. Alicia Barkley

7

2. Brenda Anderson

8

3. Charles Jones

9

4. Chris Dean

10

5. Christy Camacho

11

6. Deborah Wiebe

12

7. Diane Ashley

13

8. Eleazar Reyes

14

9. Elizabeth Yoder

15

10. Eloisa Buitron

16

11. Gary Ferguson

17

12. Hope Brewer

18

13. Kathryn Hansson

19

14. Kenneth Galle

20

15. Killian Nowden

21

16. Latuya Hobill

22

17. Nephtali Mendoza

23

18. Richard Handrich

24

19. Rob Lewis

25

20. Tim Luddington

26

27

28

18

Case3:07-cv-02050-SC Document282 Filed03/08/11 Page19 of 22

United States District Court
For the Northern District of California

1

EXHIBIT B

2

3 The Court GRANTS Defendant's Motion to Dismiss with regard to the

4 following class members. The claims of the following class members

5 are hereby dismissed without prejudice:

6

7

1. Le'ann Alarcon

8

2. Jesus Alejandre

9

3. Robin Baker

10

4. Robert Beights

11

5. Eric Bent

12

6. Jeffrey Braun

13

7. Rosemary Carlos

14

8. Shawn Cassidy

15

9. Kim Castellanos

16

10. Karen Cohen

17

11. Amanda Coker

18

12. Mike Cossolotto

19

13. William Cramer

20

14. David Cross

21

15. William Curtis

22

16. Gregg Daggett

23

17. Deann Dasher

24

18. Sally Delcastillo

25

19. Elaine Edwards

26

20. Jen Edwards

27

21. James Ellis

28

22. Teresa Fletcher

19

Case3:07-cv-02050-SC Document282 Filed03/08/11 Page20 of 22

United States District Court
For the Northern District of California

1

23. Kathy Fortune

2

24. Cindy Fukuhara

3

25. Mark Gabellini

4

26. Eric S. Garcia

5

27. Mireya Gomez

6

28. Gabriela Gonzalez

7

29. Wilber Gonzalez

8

30. Bikira Green

9

31. Jean M. Gregg

10

32. Rachel Haines

11

33. Evelyn Hanson

12

34. Kent Harwood

13

35. Steven Hensley

14

36. Danny Herrera

15

37. Naomi Star Hodgkins

16

38. Christina Hoes

17

39. William Huffer

18

40. Larry Huffstetler

19

41. Ron Jacobs

20

42. Chris James

21

43. Kirk Jansen

22

44. Hope Jennings

23

45. Betty Johnson

24

46. Maria Juarez

25

47. Steve Kauhn

26

48. Ray Kienitz

27

49. Landon Kouba

28

50. Racheal Leggans

20

Case3:07-cv-02050-SC Document282 Filed03/08/11 Page21 of 22

United States District Court
For the Northern District of California

1

51. Tina Lipnicki

2

52. David Martin

3

53. Ricky Martin

4

54. Jesus Martinez

5

55. Sonia Martinez

6

56. Paul Massey

7

57. Adam Mcfarland

8

58. Rafael Mejia

9

59. Janice Melo

10

60. Jason Millstone

11

61. Oscar Molina

12

62. Miguel Munoz

13

63. Tom Nelson

14

64. Amy Osborn

15

65. Vaensa Pan

16

66. Michelle Panattoni

17

67. Michael Pastrone

18

68. Joseph Prophet

19

69. Brandon Raes

20

70. Valentin Ramirez

21

71. Lorie Reyes (Kiefer)

22

72. David N. Robson

23

73. Monica Rosas

24

74. Norman Saban

25

75. Brandon Salazar

26

76. Jules Sanchez

27

77. Heidi Semenza

28

78. Susan Sigler

21

Case3:07-cv-02050-SC Document282 Filed03/08/11 Page22 of 22

United States District Court
For the Northern District of California

1

79. Brian A. Sjostrand

2

80. Billie Soto

3

81. Steven Taylor

4

82. Christina Valdez

5

83. Mike Van Buren

6

84. Joseph Vara

7

85. Edwin H. Walthall

8

86. Patti Wenzel

9

87. Kip Whiteacre

10

88. Robert Willey

11

89. Pat Woolweaver

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

22

 
 Case3:07-cv-02050-SC Document283 Filed03/18/11 Page1 of 11

SCOTT COLE & ASSOCIATES, APC
ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR
OAKLAND, CA 94612 TEL: (510) 891-9800

1 Scott Edward Cole, Esq. (S.B. #160744) Molly A. DeSario, Esq. (S.B. #230763)
2 SCOTT COLE & ASSOCIATES, APC 1970 Broadway, Ninth Floor
3 Oakland, California 94612 Telephone: (510) 891-9800
4 Facsimile: (510) 891-7030 email: scole@scalaw.com
5 email: mdesario@scalaw.com web: www.scalaw.com
6
Attorneys for Representative Plaintiffs 7 and the Plaintiff Class

8

9

UNITED STATES DISTRICT COURT

10

NORTHERN DISTRICT OF CALIFORNIA, SAN FRANCISCO DIVISION

11

)

12 MIGUEL A. CRUZ and JOHN D.

) Case No. C-07-2050 SC

HANSEN, individually, and on behalf )

13 of all others similarly situated,

) CLASS ACTION

)

14

Plaintiffs,

15 vs.

16 DOLLAR TREE STORES, INC.,

17

Defendant.

) PLAINTIFFS’ MEMORANDUM IN ) OPPOSITION TO DEFENDANT DOLLAR ) TREE STORES, INC.’S MOTION TO ) BIFURCATE THE LIABILITY AND ) DAMAGES PHASES OF TRIAL AND TO ) SET THE ORDER OF PRESENTATION ) AND ARGUMENT AT TRIAL
)

18

)

19

ROBERT RUNNINGS, individually, and on behalf of all others similarly

20 situated,

) Case No.: C-07-4012 SC (Consolidated Action)
)
) CLASS ACTION
)

21 vs.

Plaintiffs,

) )

)

22 DOLLAR TREE STORES, INC., 23
Defendant. 24

) Date: April 8, 2011 ) Time: 10:00 a.m. ) Dept.: Courtroom 1, 17th Floor ) Judge: Hon. Samuel Conti

25

26

27

28

Opposition to Defendant’s Motion to Bifurcate Liability and Damages and to Set the Order of Presentation at Trial

Case3:07-cv-02050-SC Document283 Filed03/18/11 Page2 of 11

SCOTT COLE & ASSOCIATES, APC
ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR
OAKLAND, CA 94612 TEL: (510) 891-9800

1 I. INTRODUCTION

2

Defendant Dollar Tree Stores, Inc.’s (“Defendant” and/or “Dollar Tree”) February 3, 2011

3 Motion to Bifurcate the Liability and Damages Phases of Trial and to Set the Order of Presentation

4 and Argument at Trial (“Motion”) asks this Court to (1) bifurcate trial into two phases, (2) allow

5 Dollar Tree to present its case first, and (3) foreclose the use of certain procedural tools during the

6 adjudication of damages. While Plaintiffs remain amenable to bifurcating trial to adjudicate liability

7 and damages issues separately, they ask this Court to deny Dollar Tree’s request to present first or

8 make decisions about the process for adjudicating damages now. First of all, Dollar Tree’s offer to

9 stipulate that each class member worked, in at least one week during the class period, more than

10 eight hours in a work day and/or forty hours in a work week does not relieve Plaintiffs of their

11 burden at the liability phase and is insufficient to alter the order of presentation at trial. Furthermore,

12 given that a liability determination could significantly narrow the issues to be decided at the damages

13 phase (e.g., if liability existed only for weeks when class members certified “no”), it makes no sense

14 to attempt to make a detailed plan at this juncture about how to best handle class-wide damages.

15

16 II. 17

STIPULATIONS Plaintiffs accept Defendant’s factual stipulation that each Class Member worked, in at least

18 one week during the Class Period, hours beyond eight in a work day and/or forty hours in a work

19 week. Plaintiffs do not agree, however, that such a stipulation provides the basis for any relief

20 requested in Defendant’s Motion. The existence of damages alone does not relieve Plaintiffs of the

21 burden to show the quantity thereof or their nature (e.g., overtime pay, versus meal period versus rest

22 period wages) or dispose of their burden of prosecution.

23

24

25

26

27

28

-1Opposition to Defendant’s Motion to Bifurcate Liability and Damages and to Set the Order of Presentation at Trial

Case3:07-cv-02050-SC Document283 Filed03/18/11 Page3 of 11

SCOTT COLE & ASSOCIATES, APC
ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR
OAKLAND, CA 94612 TEL: (510) 891-9800

1 III. LEGAL ARGUMENT

2

A. PLAINTIFFS AGREE THAT THE TRIAL SHOULD BE BIFURCATED

INTO A LIABILITY PHASE AND A DAMAGES PHASE 3

1. Bifurcation Is Appropriate Because the Parties’ Burdens of Proof Are

4

Entirely Different During The Liability And Damages Phases of Trial

5

The parties bear different burdens of proof during the liability and damages phases and, as

6 such, bifurcation is appropriate. Goldman, Goldman v. RadioShack Corp., 2005 U.S. Dist. LEXIS

7 9174 at * 4 (E.D. Pa., May 13, 2005) (bifurcation appropriate where “the standards and evidence

8 required to prove liability are entirely different than the evidence required to prove damages”); see

9 generally Sav-On Drug Stores v. Superior Court, 34 Cal. 4th 319 (2004) (adopting a phased

10 approach to trial which, first, permits resolution of common liability questions and, second,

11 determines damages on a class-wide basis through a singular method such as sampling techniques,

12 statistical analysis, questionnaires, surveys or representative sampling).

13

In the liability phase of trial, Plaintiffs carry the burden of proving the elements of their case.

14 See Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687 (U.S. 1946) (an employee seeking

15 remediation for wage and hour violations bears “the burden of proving that he performed work for

16 which he was not properly compensated”). Furthermore, although Dollar Tree has its own burden

17 (i.e., of proving that Plaintiffs were properly classified as exempt for each and every pay period 18 during the class period1), Plaintiffs must prove that “misclassification was the rule rather than the 19 exception.”2 See Sav-On Drug Stores, Inc., 34 Cal. 4th at 330.

20

21 1

See Nordquist v. McGraw Hill Broadcasting, 32 Cal.App. 4th 555, 562 (1995); Dalheim v

22 KDFW-TV, 918 F.2d 1220, 1224 (5th Cir. 1990); California Industrial Commission Wage Orders

No. 1 to 14.

23 2

Dollar Tree’s offer to stipulate that Plaintiffs each worked overtime at least once during the

24

class period does not obviate Plaintiffs’ burden at the liability phase of trial since Plaintiffs must also show that they performed the same tasks and were subject to the same policies, and all missed meal

25 and rest breaks. Furthermore, the exemplar plaintiffs will necessarily need to testify as to their
particular damages (i.e. the number of overtime hours worked and meal and rest breaks missed) so 26 that the Court can determine whether damages can be assessed on a class-wide basis. “In many

27

cases, the quantum of damages for the entire class, as well as the issue of liability, may be proved by the class representative as a common issue, thus eliminating the need for individual damages

28 proofs.” 3 Newberg § 9:52; see also 3 Newberg § 10:2 (“The court found that it was appropriate to

determine damages by using as a basis the representative plaintiffs or by using sampling to

-2-

Opposition to Defendant’s Motion to Bifurcate Liability and Damages and to Set the Order of Presentation at Trial

Case3:07-cv-02050-SC Document283 Filed03/18/11 Page4 of 11

SCOTT COLE & ASSOCIATES, APC
ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR
OAKLAND, CA 94612 TEL: (510) 891-9800

1

In the damages phase, however, the burdens are quite different. To adjudicate damages,

2 (particularly since Dollar Tree failed to keep accurate records of the hours Plaintiffs worked or the

3 meal/rest breaks they missed), Plaintiffs must prove the amount of their damages (i.e., the number of

4 overtime hours worked and the meal and rest breaks missed). McLaughlin v. Seto, 850 F.2d 586, 589

5 (9th Cir. Cal. 1988) (citing Mt. Clemens, 328 U.S. at 687-88). If and after Plaintiffs make that

6 showing, the obligation migrates to Dollar Tree to rebut the reasonableness of that evidence. Id.

7 Given the distinct and shifting burdens of proof in these two phases, bifurcation is proper.

8

2. Bifurcation Is Appropriate Because the Evidence Used to Determine

9

Liability and Damages is Entirely Different

10

Just as the burdens of proof differ between the liability and damages phases, so does the

11 evidence required to meet them. For example, liability can be proven with documents and testimony

12 showing that class members worked at Dollar Tree during the class period, that their work did not

13 meet the test for exemption, that they worked overtime hours, and that they missed meal and rest

14 breaks. Damages will be proven by entirely different evidence which does not address the nature of

15 the work, but focuses on the quantity of it (i.e., documents and testimony evidencing the number of

16 overtime hours worked, and meal and rest breaks missed). Given these distinctions, it would be a

17 confusing and time-wasteful trial to throw all of these kinds of evidence at a jury at once and expect

18 them to understand how to make use of each. It also makes no sense to drag out the trial so as to

19 examine class-wide damages when no one yet knows if the company is liable for a dime of it.

20

3. Bifurcation Will Promote Efficiency and Has the Potential to Save a

21

Lot of Time and Resources

22

Not only is a trial on both liability and damages, together, unnecessary, it could substantially

23 waste the parties’ and Court’s resources. Endeavoring to adjudicate liability and damages together

24 requires the parties to prepare and present evidence of damages including witness testimony, expert 25 analyses and/or survey results which, if liability is lacking in the first instance, will be for nothing.3

26

27 intensively study a representative group.”) (citing In re Antibiotic Antitrust Actions, 333 F.Supp.

278, 287-88 (N.D. Ill., 1991)) (emphasis added).

28 3

Note that, should a damages phase be necessary, it can be handled efficiently in a formulaic

manner (e.g., formulaic distributions of back pay have been approved by courts for use in this

-3-

Opposition to Defendant’s Motion to Bifurcate Liability and Damages and to Set the Order of Presentation at Trial

Case3:07-cv-02050-SC Document283 Filed03/18/11 Page5 of 11

SCOTT COLE & ASSOCIATES, APC
ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR
OAKLAND, CA 94612 TEL: (510) 891-9800

1 Such is also true with regard to this Court’s efforts (e.g., considering motions on damages issues),

2 again, for issues that may be mooted. The Court, the parties, and the jury should be using their time

3 and resources addressing issues that we know require adjudication, not ones that may eventually

4 require adjudication. Trial should be bifurcated.

5

B. PLAINTIFFS BEAR THE ULTIMATE BURDEN OF PROVING LIABILITY

6

AND THEREFORE THEIR CASE SHOULD BE PRESENTED FIRST

7

1. Plaintiffs’ Burden of Proof at Trial Requires Them to Present Their

Case First

8

9

As the party bringing this action, Plaintiffs carry the “burden of prosecution,” as the so-called

10 “masters of their case.” This is as true in a motor vehicle case as it is here, and does not change just

11 because, as in almost every case, an affirmative defense exists. See, generally, Oberkotter v.

12 Spreckels, 64 Cal.App. 470 (1923) (the burden is on the plaintiff to prosecute). Contrary to Dollar

13 Tree’s contention, the fact that the affirmative defense here (the “executive” exemption) plays a

14 heavy role in the liability aspect of this case doesn’t serve to re-write hornbook law with respect to

15 the natural order of presentation. This is Plaintiffs’ case; they chose the claims to bring; they now

16 carry the burden of proving the elements of those claims and their right to collect a particular amount

17 of damages and/or seek other forms of recovery. See Marlo v. UPS, 251 F.R.D. 476, 482 (C.D. Cal.

18 2008) (citing Teamsters v. United States, 431 U.S. 324, 336 (1977) and Sav-On Drug Stores, Inc.,

19 34 Cal. 4th at 330) (finding that plaintiffs have the ultimate burden of proving liability in an

20 exemption case: “A plaintiff bringing a class action normally has the ultimate burden of proving

21 class-wide liability at trial. Because Plaintiff has brought a class action challenging UPS's exemption

22 of FTS as a policy of misclassification, Plaintiff must be “able to demonstrate pursuant to either 23 scenario that misclassification was the rule rather than the exception. . . .”).4 Indeed, even in

24 presenting their case, Plaintiffs must anticipate Dollar Tree’s affirmative defense, and it would be a

25

26 context. See, e.g., Domingo v. New England Fish Co., 727 F.2d 1429, 1444-45 (9th Cir. 1984); Hilao

v. Estate of Marcos, 103 F.3d 767, 782-87 (9th Cir. 1996).

27 4

See also Combs v. Skyriver Communications, Inc., 159 Cal. App. 4th 1242, 1262-63 (Cal.

App. 4th Dist. 2008) (“The purpose of Code of Civil Procedure section 631.8 is … to dispense with

28 the need for the defendant to produce evidence … where the court is persuaded that the plaintiff has

failed to sustain its burden of proof.” (internal citations omitted).

-4-

Opposition to Defendant’s Motion to Bifurcate Liability and Damages and to Set the Order of Presentation at Trial

Case3:07-cv-02050-SC Document283 Filed03/18/11 Page6 of 11

SCOTT COLE & ASSOCIATES, APC
ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR
OAKLAND, CA 94612 TEL: (510) 891-9800

1 dangerous tactic indeed to “sit on their hands,” hoping Dollar Tree cannot make its showing. See

2 Morgan v. Family Dollar Stores, Inc., Dckt. No. 533 Case No. 7:01-cv-00303-UWC (N.D. Ala. Feb.

3 6, 2006) (twice denying the defendant’s request to present its case first and instead ordering that

4 “[i]n the presentation of their testimonial evidence, class counsel shall anticipate the Defendant’s 5 affirmative defense”) (emphasis added).5 To satisfy their burden of prosecution, Plaintiffs logically

6 proceed in presenting their case first.

7 2. Public Policy Requires That Plaintiffs Present Their Case First
8

9

Even if one was to accept that Plaintiffs did not carry the burden of prosecution, it is more

10 than noteworthy that IWC Wage Orders are specifically designed to remedy wage and hour

11 violations and are, thus, expected to be “construed liberally ‘for the protection and benefit of

12 employees.’” Wage and hour cases are confusing enough to juries; to further complicate matters by

13 confusing the order of presentation at trial would only work to make these issues seem more

14 complicated than they really need to be since, by Dollar Tree’s suggestion, it would initiate trial

15 defending itself against claims that have yet to become clear to the trier of fact – without sufficient

16 context, without a chance for the jury to become educated about the scope of the claims. Leaving the

17 jury so perplexed hardly promotes the remedial public policy interests identified above. See also

18 Reber v. AIMCO/Bethesda Holdings, Inc., 2008 U.S. Dist. LEXIS 81831, *11 (C.D. Cal. Aug. 25,

19 2008) (quoting Ramirez v. Yosemite Water Co., 20 Cal. 4th 785, 794-795 (1999)). The order of

20 presentation should not be reversed.

21

22

23

24

25

26

27

5

See RJN Exhs. A, B (Morgan Dckt. No. 510), and C (Morgan Dckt. No. 533). The Morgan

28 Court’s verdict was affirmed on appeal. See Morgan v. Family Dollar Stores, 551 F.3d 1233 (11th

Cir. 2008).

-5-

Opposition to Defendant’s Motion to Bifurcate Liability and Damages and to Set the Order of Presentation at Trial

Case3:07-cv-02050-SC Document283 Filed03/18/11 Page7 of 11

SCOTT COLE & ASSOCIATES, APC
ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR
OAKLAND, CA 94612 TEL: (510) 891-9800

1

3. Plaintiffs Should Present Their Case First For Practical Reasons

2

Finally, as the party who selects6 the “handful” of plaintiffs who will testify at trial (the

3 “exemplar plaintiffs”), Plaintiffs should also present them to the jury. These plaintiffs are

4 represented by class counsel, not Dollar Tree and, as such, class counsel should start with their direct

5 examination. The alternate approach of allowing Dollar Tree to, essentially, cross examine these

6 exemplar plaintiffs before they’ve offered their facts is illogical.

7

8

4. Defendant’s Motion Relies On A Host Of Inapposite Cases

9

The cases upon which Dollar Tree relies to alter the order of presentation are not binding in

10 this Circuit nor universally followed in any Circuit. Defendant essentially argues that the

11 unchaptered Goldman v. Radioshack Corp., 2005 U.S. Dist. LEXIS 9174 (E.D. Pa. May 13, 2005)

12 opinion (which was written for an FLSA case) provides a roadmap on this issue. Although that Court

13 altered the order of presentation -- after acknowledging that “the Court’s allocation of the right to 14 open and close … rests within the sound discretion of the trial court,”7 the weight of more pertinent

15 authority militates against the Goldman Court’s reasoning. See Marlo v. UPS, 251 F.R.D. 476, 482

16 (C.D. Cal. 2008); Teamsters v. United States, 431 U.S. 324, 336 (1977); Sav-On Drug Stores, Inc.,

17 34 Cal. 4th at 330); Combs v. Skyriver Communications, Inc., 159 Cal. App. 4th 1242, 1262-63 (Cal.

18 App. 4th Dist. 2008).

19

20

21

6

Plaintiffs’ counsel are in a far better position than Dollar Tree to determine which five class

22 members are most representative of the class. Plaintiffs’ counsel has had extensive contact with the

class members in this case regarding the work they performed for Dollar Tree (especially given that

23 Plaintiffs’ counsel have defended dozens of class members at deposition and have also obtained

declarations and discovery responses from hundreds of class members). Moreover, any information

24 Plaintiffs’ counsel may still need to select the exemplar plaintiffs is readily accessible to them since

they may freely communicate with the class members -- who are all clients of Plaintiffs’ counsel -- at

25 any time. Indeed, to allow Dollar Tree to select the exemplar plaintiffs would undermine the

efficiencies of this class action trial (and the attorney-client privilege) since, if Dollar Tree were

26 charged with proving the nature of the work Plaintiffs performed, it would necessarily need to

contact the class members (and seek additional discovery) to determine which exemplar plaintiffs it

27 wished to select as trial witnesses. Allowing Dollar Tree to conduct additional discovery (such as

more individual class member discovery requests and depositions) at this late hour would create a

28 whole host of practical problems and only delay trial.

7

Id. at *4.

-6-

Opposition to Defendant’s Motion to Bifurcate Liability and Damages and to Set the Order of Presentation at Trial

Case3:07-cv-02050-SC Document283 Filed03/18/11 Page8 of 11

SCOTT COLE & ASSOCIATES, APC
ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR
OAKLAND, CA 94612 TEL: (510) 891-9800

1

The other cases cited by Defendant fail to support the relief requested in its Motion:

2

• Johannes v. Aerotek, Inc., 2001 U.S. Dist. LEXIS 25409, *38 (C.D. Cal. June 25, 2001):

3

The Johannes Court merely points out that employers bear the burden of proving the

4 exemption applies but does not address the ultimate burden of proof as to liability.

5

• Rees v. Souza's Milk Transp. Co., 2008 U.S. Dist. LEXIS 11370 (E.D. Cal. Jan. 29, 2008):

6

Rees just orders bifurcation – which is not disputed here – and does not reach the a decision

7 as to the sequence of presentation.

8

• Pellegrino v. Robert Half Internat., Inc., 182 Cal. App. 4th 278, 285 (2010):

9

The dicta in this state court opinion also does not reach whether defendant-employers must

10 categorically be allowed to present their case-in-chief on exemption issues first.

11

• Stewart v. City & County of San Francisco, 834 F. Supp. 1233, 1236 (N.D. Cal. 1993)

12

The Stewart Court does not address whether the defendant-employer bore the ultimate

13 burden of proof at trial. Stewart merely addresses questions of law related to the reach of the

14 Department of Labor’s regulatory powers with respect to municipal employers.

15

• Latino Food Marketers, L.L.C. v. Ole Mexican Foods, Inc., 2004 U.S. Dist. LEXIS 5239

16

(W.D. Wis. Mar. 30, 2004):

17

Dollar Tree characterizes the defendant’s affirmative defense in Latino Foods as the

18 “principal disputed issue” (see Motion at 14:16) but in reality it was the only disputed issue. Unlike

19 the instant matter where Plaintiffs bear the ultimate burden of proof with respect to liability, the

20 Latino Foods Court allowed that defendant to present its case first because “[t]he only way that

21 defendant can avoid liability is to prove its own breach of contract claim by proving the existence of

22 the … contract.” Id. at *2. Here, the liability analysis cannot be boiled down to such a binary inquiry.

23

• Montwood Corp. v. Hot Springs Theme Park Corp., 766 F.2d 359, 364 (8th Cir. Ark. 1985):

24

The Montwood Court affirmed the trial court’s election to allow the defendant to present its

25 affirmative defense first because “the only issue in dispute at this point in the trial was whether the

26 back rents were included in the $500,000 sales price.” Id. (emphasis added). Here, there are myriad

27 factual and legal issues that must be analyzed to determine whether Dollar Tree properly applied the

28 executive exemption to the class members.

-7Opposition to Defendant’s Motion to Bifurcate Liability and Damages and to Set the Order of Presentation at Trial

Case3:07-cv-02050-SC Document283 Filed03/18/11 Page9 of 11

SCOTT COLE & ASSOCIATES, APC
ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR
OAKLAND, CA 94612 TEL: (510) 891-9800

1

• Moylan v. Meadow Club, Inc., 979 F.2d 1246, 1251 (7th Cir. Ill. 1992):

2

Moylan, which recognized that it is “customary” for the party bearing the burden of proof

3 (“usually the plaintiff”) to open and close the argument,8 is inapposite because it was an individual

4 case and presented only a single liability question. This case is a class action and questions beyond

5 the exemption will be adjudicated at liability.

6

• Reyes v. Texas EzPawn, L.P., 2007 U.S. Dist. LEXIS 78846 (S.D. Tex. Oct. 24, 2007):

7

Unlike the instant matter, the Reyes “parties [had] stipulated to each element of Plaintiff's

8 prima facie case.” Id. at *3 (emphasis added). Moreover, in Reyes, “the only issue that remained at

9 closing was the defendant’s affirmative defense that plaintiff was exempt from overtime pay

10 provisions of the FLSA” since “the records clearly show[ed] the number of overtime hours worked

11 by Reyes and it is undisputed that he performed work for which he was not compensated.” Reyes at

12 *5-8. Here, the proposed stipulations do not boil all liability issues down to a binary question as to

13 whether the exemption applies. Moreover, there are no facts on the record regarding the number of

14 overtime hours class members worked in the instant litigation.

15

16

C. THIS COURT SHOULD NOT MAKE DETERMINATIONS ABOUT THE

ADJUDICATION OF DAMAGES UNTIL AFTER LIABILITY IS

17

DECIDED

18

The Court should not rule out any particular process for determining damages until after

19 Phase I (liability) concludes. Dollar Tree agrees that “the issues of liability are not intertwined with 20 the issues to be addressed during the damages phase”9 and that “bifurcation will promote 21 convenience and judicial economy regardless of the determination during the liability phase.”10

22 Nevertheless, Dollar Tree asks this Court to make specific determinations now about how damages

23 will be adjudicated before liability has been tried. This is not a topic ripe for evaluation.

24

It is highly questionable whether a jury will even be needed during the damages phase since

25 individual damages can efficiently be adjudicated by common evidence or through one or more of

26

27 8
28 9 10

Moylan at 1251. Id. at 6:10-11. Motion at 5:18-19.

-8-

Opposition to Defendant’s Motion to Bifurcate Liability and Damages and to Set the Order of Presentation at Trial

Case3:07-cv-02050-SC Document283 Filed03/18/11 Page10 of 11

SCOTT COLE & ASSOCIATES, APC
ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR
OAKLAND, CA 94612 TEL: (510) 891-9800

1 the formulaic tools discussed in Bell v. Farmers Ins. Exchange, 115 Cal. App. 4th 715, 749 (2004).

2 Moreover, as Dollar Tree admits, the damages landscape might change considerably after liability is

3 concluded. Motion at 5:21-6:5. (“Even if Dollar Tree does not prevail in Phase One, however, a

4 bifurcation order will promote convenience and economy by clarifying the scope of Phase Two. For

5 example, if the jury determines that liability may be imposed only during weeks in which a “no”

6 certification response was received by Dollar Tree, then Phase Two will be tailored to that issue. If,

7 however, the jury determines that misclassification was the rule rather than the exception at Dollar

8 Tree, there “may be more scope for individual testimony from class members at the damages phase”

9 Cruz, 2010 U.S. Dist. LEXIS 101340, at * 23). In Dollar Tree’s example, if the jury found that

10 liability only exists for weeks in which a “no” certification response was received, then the parties

11 themselves could review and stipulate to the “no” certifications during the damages phase of trial. In

12 such a scenario, there would be no need to employ a jury to determine damages.

13

Moreover, even if further testimony is required to determine the level of damages, the jury

14 does not need to be familiar with the liability phase of the case (which Dollar Tree already admits

15 requires different burdens of proof and different evidence) to do that job. Nor does it make sense to

16 hold jurors over to the damages phase of trial when the case will likely settle before a damages

17 determination is made (assuming liability is found in the first place). Even if this case never settles,

18 the delay required for motion work, class surveys and expert analyses before the damages

19 adjudication can begin would place an onerous burden on jurors and make their continued

20 participation in the case difficult to guarantee.

21 For the same reasons it is impossible to know whether a jury would be needed for a damages phase,

22 it is impossible to predict whether a magistrate judge will be either. Dollar Tree offers no evidence

23 or good reason why this case would benefit by prematurely rejecting the use of a magistrate judge

24 now. Furthermore, there is at least one reason (which is, ironically, raised in Dollar Tree’s Motion)

25 to employ a magistrate judge during the damages phase: if damages is to be determined based on

26 “no” certifications, a magistrate may indeed be the best person to handle discovery disputes arising

27 from the review of the certifications (e.g., squabbles over how to handle purportedly illegible

28 handwritten certifications, etc.) since handling discovery disputes are commonplace for them. In any

-9Opposition to Defendant’s Motion to Bifurcate Liability and Damages and to Set the Order of Presentation at Trial

Case3:07-cv-02050-SC Document283 Filed03/18/11 Page11 of 11

SCOTT COLE & ASSOCIATES, APC
ATTORNEY’S AT LAW THE WACHOVIA TOWER 1970 BROADWAY, NINTH FLOOR
OAKLAND, CA 94612 TEL: (510) 891-9800

1 event, no one can forecast what procedural tools and rulings will be appropriate for a damages phase

2 prior to a liability determination. The Court should hold in abeyance any decision regarding the

3 structure of Phase II (damages) until after Phase I is over.

4

5 IV. CONCLUSION

6

Based upon the foregoing, Dollar Tree’s Motion should be granted with respect to its request

7 to bifurcate trial, and denied with respect to its requests to (1) modify the order of trial presentation,

8 and (2) reach damages (Phase II) determinations.

9

10 Dated: March 18, 2011

SCOTT COLE & ASSOCIATES, APC

11

12

By: /s/ Molly A. DeSario

Molly A. DeSario, Esq.

13

Attorneys for Representative Plaintiffs

14

and the Plaintiff Class

15

16

17

18

19

20

21

22

23

24

25

26

27

28

-10Opposition to Defendant’s Motion to Bifurcate Liability and Damages and to Set the Order of Presentation at Trial

 
 Case3:07-cv-02050-SC Document320 Filed07/08/11 Page1 of 19

United States District Court
For the Northern District of California

1

2

3

4

IN THE UNITED STATES DISTRICT COURT

5

FOR THE NORTHERN DISTRICT OF CALIFORNIA

6

7 MIGUEL A. CRUZ, and JOHN D.

) Case Nos. 07-2050 SC

HANSEN, individually and on behalf ) 8 of all others similarly situated, )

07-4012 SC

9

Plaintiffs,

) )

ORDER DECERTIFYING CLASS

)

10

v.

)

)

11 DOLLAR TREE STORES, INC.,

)

)

12

Defendant.

)

)

13

)

ROBERT RUNNINGS, individually, and )

14 on behalf of all others similarly )

situated,

)

15

)

Plaintiffs,

)

16

)

v.

)

17

)

DOLLAR TREE STORES, INC.,

)

18

)

Defendant.

)

19

)

20 I. 21

INTRODUCTION This is a certified class action brought by Plaintiffs Robert

22 Runnings ("Runnings"), Miguel Cruz ("Cruz"), and John Hansen

23 ("Hansen") (collectively, "Plaintiffs"), who allege that they and 24 other current and former store managers at Defendant Dollar Tree 25 Stores, Inc. ("Defendant" or "Dollar Tree") were misclassified as 26 executive-exempt employees and thereby denied overtime pay and meal 27 and rest breaks in violation of California law. On May 27, 2011, 28 the Court conducted a hearing on the trial plans submitted by

Case3:07-cv-02050-SC Document320 Filed07/08/11 Page2 of 19

United States District Court
For the Northern District of California

1 Plaintiffs and Defendant. At the conclusion of the hearing, the

2 Court expressed concern over the continued propriety of class

3 treatment in this case and ordered the parties to submit briefs

4 addressing whether continued class treatment was appropriate. The

5 parties have submitted briefs in response to the Court's order.

6 ECF Nos. 314 ("Def.'s Br."), 317 ("Pls.' Br.).1 After reviewing

7 these briefs, and many other papers submitted by the parties over

8 the course of this litigation, the Court finds that continued class

9 treatment is inappropriate and DECERTIFIES the class for the

10 following reasons.

11

12 II. BACKGROUND

13

The Court assumes the parties are familiar with the procedural

14 and factual background of this case, which the Court set out in its

15 May 26, 2009 Order Granting the Amended Motion for Class

16 Certification. ECF No. 107 ("Orig. Cert. Order"). Accordingly,

17 the Court provides a truncated version here.

18

Plaintiffs are former Dollar Tree employees who held the

19 position of store manager. On April 11, 2007, Cruz and Hansen

20 filed suit ("the Cruz action") on behalf of themselves and all

21 others similarly situated against Dollar Tree, alleging that Dollar

22 Tree improperly categorizes its store managers as executive-exempt

23 employees under California and federal labor laws. ECF No. 1

24 ("Compl."). In August 2007, Runnings filed a similar action in

25 state court (the "Runnings action"), which was subsequently removed

26 1 Cruz v. Dollar Tree, Case No. 07-2050 ("Cruz action"), and 27 Runnings v. Dollar Tree, Case No. 07-4012 ("Runnings action"), have
been consolidated. Unless otherwise noted, all docket numbers in 28 this Order refer to docket entries in the Cruz action.

2

Case3:07-cv-02050-SC Document320 Filed07/08/11 Page3 of 19

United States District Court
For the Northern District of California

1 and consolidated with the Cruz action. See ECF No. 45.

2

On May 26, 2009, the Court certified a class of "all persons

3 who were employed by Dollar Tree Stores, Inc. as California retail

4 Store Managers at any time on or after December 12, 2004, and on or

5 before May 26, 2009," and appointed Plaintiffs as class

6 representatives. See Orig. Cert. Order. The class consisted of

7 718 store managers ("SMs") who worked in 273 retail locations. Id.

8

On June 18, 2010, in the wake of two Ninth Circuit decisions

9 regarding employment class actions -- In re Wells Fargo Home

10 Mortgage Overtime Pay Litigation, 571 F.3d 953 (9th Cir. 2009)

11 ("Wells Fargo I"), and Vinole v. Countrywide Home Loans, Inc., 571

12 F.3d 935 (9th Cir. 2009) -- Dollar Tree moved for decertification,

13 arguing that changes in the law made continued class treatment

14 inappropriate. ECF No. 188. On September 9, 2010, the Court

15 granted in part and denied in part Dollar Tree's motion for

16 decertification. ECF No. 232 ("Part. Decert. Order").

17

As explained in the Original Certification Order and the

18 Partial Decertification Order, Dollar Tree requires its SMs to

19 complete weekly payroll certifications indicating whether they

20 spent more than fifty percent of their actual work time each week

21 performing seventeen listed duties that Dollar Tree believes to be

22 "managerial" in nature. See Part. Decert. Order at 2. The

23 certification form states that SMs "may not spend more than a total

24 of 35% of his/her actual work time each week receiving product,

25 distributing and storing product, stocking product and cashiering."

26 Id. Each SM must certify "yes" if he or she spent the majority of

27 his or her time performing the seventeen duties and "no" if he or

28 she did not. Id. The payroll certification form further states

3

Case3:07-cv-02050-SC Document320 Filed07/08/11 Page4 of 19

United States District Court
For the Northern District of California

1 that if the SM responds no, "s/he must immediately provide an

2 explanation to both Payroll and Human Resources. No salary or wage

3 will be withheld because of non-compliance." Id. The form

4 provides a space for SMs to write an explanation. Id.

5

In its Partial Decertification Order, after reviewing the

6 Ninth Circuit's decisions in Wells Fargo I and Vinole and examining

7 subsequent district court reactions, the Court decided that, with a

8 modification of the class definition, this case could proceed as a

9 class action. The Court held that Dollar Tree's payroll

10 certifications provided common proof of how SMs were spending their

11 time. Part. Decert. Order at 12-13. The Court reasoned that this 12 common proof -- which was lacking in other cases2 where classes

13 were decertified after Vinole and Wells Fargo I -- would obviate

14 the need for much individual testimony from SMs concerning how they

15 spent their time. Id. However, the Court narrowed the class to

16 include only those SMs who certified "no" on a payroll

17 certification form at least once during the class period. The

18 Court reasoned that, in order to prove liability with regard to the

19 SMs who always certified "yes," Plaintiffs would need to show that

20 these SMs were not truthful when completing their payroll

21 certifications. Id. Such credibility determinations would require

22 individualized inquiries that would overwhelm the common issues in

23 the case. Id. By narrowing the class, the Court sought to avoid

24 this problem.

25

The Partial Decertification Order resulted in a class

26 2 See, e.g., In re Wells Fargo Home Mortg. Overtime Pay Litig., 268
27 F.R.D. 604, 611 (N.D. Cal. Jan. 13, 2010) ("Wells Fargo II")(denying class certification because plaintiffs could not
28 produce "common proof that would absolve this court from inquiring into how each [manager] spent their working day").

4

Case3:07-cv-02050-SC Document320 Filed07/08/11 Page5 of 19

United States District Court
For the Northern District of California

1 consisting of 273 members and defined as "all persons who were

2 employed by Dollar Tree Stores, Inc. as California retail store

3 managers at any time on or after December 12, 2004, and on or

4 before May 26, 2009, and who responded 'no' at least once on Dollar

5 Tree's weekly payroll certifications." Id. at 23. The class 6 definition has not been altered further.3

7

The Court subsequently reviewed motions from Plaintiffs and

8 Defendant addressing trial management issues, reviewed and denied a

9 motion for reconsideration of the Partial Decertification Order

10 filed by Plaintiffs, and held a May 27, 2011 hearing to discuss

11 trial management issues. See ECF Nos. 277 ("Def.'s Trial Plan"),

12 290 ("Pls.' Trial Plan"), 301 ("Mot. for Recon."). These

13 developments, along with the Ninth Circuit's decision in Marlo v.

14 United Parcel Serv., Inc., No. 09-56196, 2011 U.S. App. LEXIS 8664

15 (9th Cir. Apr. 28, 2011) ("Marlo II"), made the Court increasingly

16 concerned that individualized issues will predominate over class-

17 wide issues if this case proceeds to trial as a class action. The

18 Court thus decided to entertain further briefing from the parties

19 regarding the propriety of continued class treatment. The Supreme

20 Court's recent decision in Wal-Mart Stores, Inc. v. Dukes, No. 10-

21 277, 2011 U.S. LEXIS 4567 (June 20, 2011), has since heightened the

22 Court's concerns. Having considered the parties' briefings, recent

23
24 3 On March 8, 2011, the Court granted in part Dollar Tree's Motion to Dismiss Claims of Class Members Who Failed to Respond to
25 Discovery Requests. ECF No. 282 ("Mar. 8, 2011 Order"). The Court dismissed the claims of eighty-nine class members who failed to
26 respond to limited discovery authorized by the Court despite multiple warnings that failure to respond might result in
27 dismissal. Id. The Court declined to dismiss twenty class members who did not receive the final warning letter sent by Plaintiffs'
28 counsel. The March 8, 2011 Order reduced the class to its current size of 184 members.

5

Case3:07-cv-02050-SC Document320 Filed07/08/11 Page6 of 19

United States District Court
For the Northern District of California

1 developments in the case, and recent developments in the law of

2 class actions, the Court finds that decertification of the class is

3 warranted.

4

5 III. LEGAL STANDARD

6

The district court has the discretion to certify a class under

7 Federal Rule of Civil Procedure 23. See Molski v. Gleich, 318 F.3d

8 937, 946 (9th Cir. 2003). Rule 23(a) requires that the plaintiff

9 demonstrate (1) numerosity, (2) commonality, (3) typicality, and

10 (4) fair and adequate representation of the class interest. Fed.

11 R. Civ. P. 23(a). In addition to meeting these requirements, the

12 plaintiff must also show that the lawsuit qualifies for class

13 action status under one of the three criteria found in Rule 23(b).

14 Dukes, 2011 U.S. LEXIS 4567, at *12.

15

A district court's order to grant class certification is

16 subject to later modification, including class decertification.

17 See Fed. R. Civ. P. 23(c)(1)(C) ("An order that grants or denies

18 class certification may be altered or amended before final

19 judgment."). "If evidence not available at the time of

20 certification disproves plaintiffs' contentions that common issues

21 predominate, the district court has the authority to modify or even

22 decertify the class." Dukes v. Wal-Mart Stores, Inc., 603 F.3d

23 571, 579 (9th Cir. 2010), rev'd on other grounds, No. 10-277, 2011

24 U.S. LEXIS 4567 (June 20, 2011).

25

In considering the appropriateness of decertification, the

26 standard of review is the same as a motion for class certification:

27 whether the Rule 23 requirements are met. O'Connor v. Boeing N.

28 Am., Inc., 197 F.R.D. 404, 410 (C.D. Cal. 2000). "Although

6

Case3:07-cv-02050-SC Document320 Filed07/08/11 Page7 of 19

United States District Court
For the Northern District of California

1 certification decisions are not to focus on the merits of a

2 plaintiff's claim, a district court reevaluating the basis for

3 certification may consider its previous substantive rulings in the

4 context of the history of the case, and may consider the nature and

5 range of proof necessary to establish the class-wide allegations."

6 Marlo v. United Parcel Serv., Inc., 251 F.R.D. 476, 479 (N.D. Cal.

7 2008) ("Marlo I") (internal citations omitted).

8

9 IV. DISCUSSION

10

The central issue in this case is whether Dollar Tree

11 misclassified its SMs as exempt. Here, the Court previously ruled

12 that Plaintiff had satisfied Rule 23(a) and certified the class

13 under Rule 23(b)(3). See Orig. Cert. Order. Dollar Tree argues

14 that continued certification under Rule 23(b)(3) is improper

15 because Plaintiffs have failed to provide common proof of

16 misclassification, and that therefore individual inquiries will 17 predominate at trial.4 Def.'s Br. at 1. Plaintiffs argue that

18 there have been no new developments in the facts of this case or in

19 the law that compel decertification. Pls.' Br. at 4. The Court

20 agrees with Dollar Tree.

21

Rule 23(b)(3) requires that "questions of law or fact common

22 to the members of the class predominate over any questions

23 affecting only individual members, and that a class action is

24 superior to other available methods for the fair and efficient

25 adjudication of the controversy." Fed. R. Civ. P. 23(b)(3). Among

26
27 4 Dollar Tree also argues that Plaintiffs fail to satisfy the commonality requirement of Rule 23(a). Because the Court finds
28 that the predominance requirement is not met, it does not address whether Rule 23(a) is satisfied.

7

Case3:07-cv-02050-SC Document320 Filed07/08/11 Page8 of 19

United States District Court
For the Northern District of California

1 the issues central to the predominance inquiry is whether the case,

2 if tried, would present intractable management problems. Fed. R.

3 Civ. P. 23(b)(3)(D).

4

Developments in this case and in the case law since the Court

5 issued its Partial Decertification Order in September 2010 have

6 persuaded the Court that individual issues predominate in this case

7 and trial as a class action would present unmanageable

8 difficulties. In particular, the basis for continued certification

9 of the present class in the Court's Partial Decertification Order -

10 - the determination that the payroll certification forms could

11 serve as reliable common proof of how SMs were spending their time

12 -- is no longer tenable. Both parties have repeatedly attacked the

13 reliability of the certification forms. Additionally, it has

14 become clear to the Court that "the crux" of Plaintiffs' proof at

15 trial will be representative testimony from a handful of class

16 members. See ECF No. 290 ("Pls.' Mot. for Pre-Trial Order") at 6.

17 The appropriateness of such a trial plan was a questionable

18 proposition under this circuit's case law at the time of the 19 Court's Partial Decertification Order.5 It is now untenable in

20 light of the Ninth Circuit's decision in Marlo II and the Supreme

21 Court's decision in Dukes.

22

The Court begins by briefly reviewing the California labor law

23
24 5 See, e.g., Wells Fargo II, 268 F.R.D. at 612 ("[T]he court has been unable to locate any case in which a court permitted a
25 plaintiff to establish the non-exempt status of class members, especially with respect to the outside sales exemption, through
26 statistical evidence or representative testimony."); Beauperthuy v. 24 Hour Fitness USA, Inc., 2011 U.S. Dist. LEXIS 24768, *59-60
27 (N.D. Cal. 2011) (rejecting the use of representative testimony where deposition testimony "show[ed] that for every manager who
28 says one thing about his or her job duties and responsibilities, another says just the opposite.").

8

Case3:07-cv-02050-SC Document320 Filed07/08/11 Page9 of 19

United States District Court
For the Northern District of California

1 at issue in this case and then proceeds to explain why continued

2 class treatment is no longer appropriate.

3

A. California's Executive Exemption in Class Actions

4

California law requires that all employees receive overtime

5 compensation and authorizes civil actions for the recovery of

6 unpaid compensation. Cal. Lab. Code §§ 510, 1194. However, the

7 law recognizes an exemption for "executive" employees who meet six

8 criteria. To qualify as executive-exempt, an employee must: (1)

9 manage the enterprise, a customarily recognized department, or

10 subdivision thereof; (2) direct the work of two or more other

11 employees; (3) have the authority to hire or fire, or have their

12 recommendations to hire, fire, or promote given weight; (4)

13 exercise discretion and independent judgment; (5) be "primarily

14 engaged" in exempt duties; and (6) earn a monthly salary equal to

15 twice the state minimum wage for full-time employment. Cal. Code

16 Regs. tit. 8, § 11070(1)(A)(1)(a)-(f).

17

The "primarily engaged" prong of the exemption inquiry

18 requires a week-by-week analysis of how each employee spent his or

19 her time. Marlo II, 2011 U.S. App. LEXIS 8664, at *14. The

20 applicable regulations state that in determining whether an

21 employee is "primarily engaged" in exempt work, "[t]he work

22 actually performed by the employee during the course of the

23 workweek must, first and foremost, be examined and the amount of

24 time the employee spends on such work . . . shall be considered."

25 Cal. Code Regs. tit. 8, § 11090(1)(A)(1)(e). California courts

26 have construed this requirement to mean that "the Court must

27 determine whether any given class members (or all the class

28 members) spend more than 51% of their time on managerial tasks in

9

Case3:07-cv-02050-SC Document320 Filed07/08/11 Page10 of 19

United States District Court
For the Northern District of California

1 any given workweek." Dunbar v. Albertson's, Inc., 47 Cal. Rptr. 3d

2 83, 86 (Ct. App. 2006) (emphasis added).

3

In order to satisfy Rule 23(b)(3), Plaintiffs must provide

4 common proof that "misclassification was the rule rather than the

5 exception." Marlo II, 2011 U.S. App. LEXIS 8664, at *12. Thus,

6 Plaintiffs must provide common proof that, among other things,

7 class members were spending more than fifty-one percent of their

8 time on managerial tasks in any given workweek. In its Partial

9 Decertification Order, the Court held that the payroll

10 certification forms could provide this proof. Subsequent

11 developments have demonstrated that the certification forms cannot

12 serve as reliable common proof and that Plaintiffs instead intend

13 to rely on individual testimony by exemplar class members at trial.

14

B. Changes in the Legal Landscape Favor Decertification

15

Two developments in the law of employment class actions since

16 the Court issued its Partial Decertification Order bear heavily on

17 the Court's decision that class treatment in this case is no longer

18 proper.

19

First, the Ninth Circuit's recent decision in Marlo II affirms

20 the impropriety of relying on representative testimony where

21 plaintiffs have provided no reliable means of extrapolating that

22 testimony to the class as a whole. In Marlo II, the Ninth Circuit

23 affirmed the decision of this district court decertifying a class

24 of employees who alleged they were misclassified as executive-

25 exempt. 2011 U.S. App. LEXIS 8664, at *17. The district court

26 found that the plaintiffs had failed to satisfy Rule 23(b)(3)'s

27 predominance requirement because they had failed to provide common

28 evidence of misclassification that would obviate the need for

10

Case3:07-cv-02050-SC Document320 Filed07/08/11 Page11 of 19

United States District Court
For the Northern District of California

1 individualized inquiries. Marlo I, 251 F.R.D. at 485. The court

2 explained that the plaintiffs' primary evidence at trial would be

3 the testimony of individual class members. Id. at 486. The court

4 concluded:

5

Without more than this individual testimony, the Court

cannot conceive how the overtime exemption will be

6

presented to the jury as a common issue for class-wide

7

adjudication, as opposed to a number of individualized

inquiries. There is a significant risk that the trial

8

would become an unmanageable set of mini-trials on the

particular individuals presented as witnesses. 9

10 Id. In affirming the district court's decision, the Ninth Circuit 11 held that the plaintiffs' evidence did not support predominance, 12 and that the district court did not abuse its discretion by holding

13 that representative testimony did not support a class-wide 14 determination. Marlo II, 2011 U.S. App. LEXIS 8664, at *15-17. As 15 explained below, given that the payroll certification forms in the

16 instant case can no longer be considered reliable proof, 17 Plaintiffs' evidence in this case closely parallels that in Marlo 18 II and fails to establish predominance for the same reasons.

19

Second, the United States Supreme Court's recent decision in

20 Dukes provides a forceful affirmation of a class action plaintiff's

21 obligation to produce common proof of class-wide liability in order

22 to justify class certification. In Dukes, the Court reversed 23 certification of a class of current and former female Wal-Mart 24 employees who alleged that Wal-Mart discriminated against them on

25 the basis of their sex by denying them equal pay and promotions in 26 violation of Title VII of the Civil Rights Act of 1964. 2011 U.S. 27 LEXIS 4567, at *37-38. The Court found that the plaintiffs had

28 failed to satisfy the commonality requirement of Rule 23(a). Id.

11

Case3:07-cv-02050-SC Document320 Filed07/08/11 Page12 of 19

United States District Court
For the Northern District of California

1 The Court emphasized that it was not enough to pose common

2 questions; rather, those questions must be subject to common

3 resolution. Id. at *19. The evidence of commonality the

4 plaintiffs offered -- consisting of statistical evidence of pay and

5 promotion disparities, anecdotes from class members, and the

6 testimony of a sociologist who opined that Wal-Mart had a culture

7 of sex discrimination -- failed to provide the "glue" necessary to

8 render all class members' claims subject to common resolution. Id.

9 at *27-34. Similarly here, as explained below, Plaintiffs have

10 failed to provide common proof to serve as the "glue" that would

11 allow a class-wide determination of how class members spent their

12 time on a weekly basis. In the absence of such proof, the

13 commonality threshold, let alone the predominance inquiry of Rule

14 23(b)(3), has not been met.

15

Also of importance to this case, Dukes rejected a "Trial by

16 Formula" approach to damages akin to that which Plaintiffs have

17 proposed here. Id. at *48-51. The Dukes plaintiffs intended to

18 determine each class member's damages using a formulaic model

19 approved by the Ninth Circuit in Hilao v. Estate of Marcos, 103

20 F.3d 767, 782-87 (9th Cir. 1996). Id. In Hilao, compensatory

21 damages for 9,541 class members were calculated by selecting 137

22 claims at random, referring those claims to a special master for

23 valuation, and then extrapolating the validity and value of the

24 untested claims from the sample set. See Dukes, 603 F.3d at 625-

25 26. The Ninth Circuit in Dukes concluded that a similar procedure

26 could be used by allowing Wal-Mart "to present individual defenses

27 in the randomly selected sample cases, thus revealing the

28 approximate percentage of class members whose unequal pay or

12

Case3:07-cv-02050-SC Document320 Filed07/08/11 Page13 of 19

United States District Court
For the Northern District of California

1 nonpromotion was due to something other than gender

2 discrimination." Id. at 627 n.5. The Supreme Court rejected this

3 "novel project" as a "Trial by Formula" that would deprive Wal-Mart

4 of its right to assert statutory defenses to the individual claims

5 of all class members. Dukes, 2011 U.S. LEXIS 4567, at *48-51.

6 Here, Plaintiffs rely on Hilao to propose determining

7 individualized damages "in a formulaic manner." Pls.' Mot. for

8 Pre-Trial Order at 4 n.10. In light of the Supreme Court's

9 rejection of this approach, it is not clear to the Court how, even

10 if class-wide liability were established, a week-by-week analysis

11 of every class member's damages could be feasibly conducted.

12

C. Recent Developments in this Case Compel Decertification

13

Since issuing its Partial Decertification Order, the Court has

14 learned that the payroll certification forms cannot serve as

15 reliable common proof of misclassification, and that Plaintiffs

16 intend to rely primarily on individual testimony by exemplar class

17 members to prove their case. These developments lead the Court to

18 conclude that individual issues will predominate at trial.

19

1. The Payroll Certification Forms Can No Longer Be

20

Considered Reliable Common Proof

21

In its Partial Decertification Order, the Court found that the

22 payroll certifications appeared reliable based on the analysis of

23 Dollar Tree's expert Robert Crandall. See Part. Decert. Order at

24 17-20. In making this determination, however, the Court expressly

25 noted that "[t]he Court is not bound by these determinations as the

26 litigation progresses. If persuaded by the parties to do so, the

27 Court can revise its determination concerning the overall

28 reliability of the certifications." Id. at 20. The Court has

13

Case3:07-cv-02050-SC Document320 Filed07/08/11 Page14 of 19

United States District Court
For the Northern District of California

1 since learned that approximately sixty percent of class members

2 stated under oath that either (1) they were not truthful when

3 submitting their weekly payroll certifications, or (2) their "yes"

4 responses did not in fact indicate that they spent more than fifty

5 percent of their actual work time performing the tasks listed on

6 the form. ECF No. 298-1 ("Vandall Decl. ISO Objections to Ngo

7 Decl.") at ¶ 4.6 An additional twenty-five percent of the class

8 could not recall whether they were truthful when submitting their

9 weekly certifications or provided no response at all. Id.

10

In addition, Plaintiffs themselves have argued on numerous

11 occasions since the Court's Partial Decertification Order that the

12 payroll certifications are not an accurate indication of how class

13 members spent their time. They have made this argument despite the

14 Court's repeated admonition that "if Plaintiffs intend to argue

15 that the certifications do not provide a reliable measure of weeks

16 when SMs were not spending most of their time performing managerial

17 tasks, then it is not clear to the Court how this case can proceed

18 as a class action." Part. Decert. Order at 17; see also ECF No.

19 294 ("Order Granting Leave to File Mot. for Recons.") at 2 (same).

20 Indeed, in opposition to Defendant's motion for summary

21 adjudication, Plaintiffs argued that "the certification responses

22 are clearly unreliable." Runnings action, ECF No. 337 ("Pls.' Opp.

23 To MSA") at 10. Plaintiffs argued that class members were confused

24 about how to complete the forms, that the analysis of Defendant's

25
26 6 When it issued the Partial Decertification Order, the Court was only presented with evidence that ten class members indicated they
27 were not truthful when submitting their payroll certifications. See Part. Decert. Order at 17. Dollar Tree has subsequently
28 provided evidence that 111 class members indicated the same. Vandall Decl. ISO Objections to Ngo Decl. at ¶ 4.

14

Case3:07-cv-02050-SC Document320 Filed07/08/11 Page15 of 19

United States District Court
For the Northern District of California

1 expert Crandall was based on old data compiled prior to the

2 narrowing of the class, and that there are a large number of weeks

3 for which class members did not fill out certification forms. Id.

4 Similarly, in Plaintiffs' motion for reconsideration filed on April

5 22, 2011, Plaintiffs argued that "[r]ecent events . . . have

6 revealed that Dollar Tree's [payroll certification] records are

7 wrought with problems and have therefore provided an unreliable

8 basis by which to establish eligibility for class membership." ECF

9 No. 301 at 1.

10

Plaintiffs now argue that the certification forms are indeed

11 reliable common proof of how class members were spending their

12 time. Pls.' Br. at 8-10. Their argument, however, amounts to

13 nothing more than pointing to the Court's determination in the

14 Partial Decertification Order and noting that Dollar Tree has used

15 the process for years. Id. This does nothing to overcome the fact

16 that a majority of class members have stated under oath that their

17 certifications were not truthful or did not accurately reflect the

18 time they actually spent performing the tasks listed on the form.

19

In sum, the Court's certification of the current class was

20 premised on the reliability of the payroll certifications as common

21 proof of misclassification. Subsequent briefing by both parties

22 has made this premise no longer sustainable. As a result, it is no

23 longer possible to view the negative responses as, in the words of

24 the Supreme Court, the "glue" that holds all of the individualized

25 experiences of the class members together. See Dukes, 2011 U.S.

26 LEXIS 4567, at *24.

27 ///

28 ///

15

Case3:07-cv-02050-SC Document320 Filed07/08/11 Page16 of 19

United States District Court
For the Northern District of California

1

2. Representative Testimony Cannot Properly Serve as

2

Common Proof of Class-wide Liability in This Case

3

Plaintiffs indicated in their trial plan that they intend to

4 make representative testimony "the crux" of their case. Pls.' Mot.

5 for Pretrial Order at 6 ("exemplar plaintiffs' testimony will be

6 the crux of the Plaintiffs' case"); id. at 8 ("the liability issues

7 in this case should be driven by the actual work performed by the

8 class members as evidenced by the exemplar plaintiffs'

9 testimony."). They now contend that this Court already decided

10 that representative testimony of exemplar plaintiffs would be

11 binding on the rest of the class when it chose to certify this case

12 as a class action. Pls.' Br. at 19. According to Plaintiffs,

13 "this Court should simply order that the testimony of five exemplar

14 plaintiffs will be extrapolated to the class as a whole." Id. The

15 Court declines to do so. In its Partial Decertification Order, the

16 Court noted that "representative testimony seems appropriate as

17 part of Plaintiffs' case-in-chief." Part. Decert. Order at 21 n.5.

18 However, as the order makes clear, this statement was premised on

19 the determination that the payroll certifications provided the glue

20 necessary to justify extrapolation from a subset of class members

21 to the class as a whole. As explained above, this conclusion is no

22 longer tenable.

23

Courts in this district have repeatedly decertified classes in

24 overtime exemption cases where Plaintiffs have provided no reliable

25 means of extrapolating from the testimony of a few exemplar class

26 members to the class as a whole. In Marlo I, the Court explained

27 that:

28

Plaintiff's evidence at trial primarily would be

16

Case3:07-cv-02050-SC Document320 Filed07/08/11 Page17 of 19

United States District Court
For the Northern District of California

1

individual [class members'] testimony . . . . The

exempt/non-exempt inquiry focuses on what an employee

2

actually does.

The declarations and deposition

3

testimony of [class members] submitted by the parties

suggest variations in job duties . . . . Without more

4

than this individual testimony, the Court cannot

conceive how the overtime exemption will be presented

5

to the jury as a common issue for class-wide

6

adjudication, as opposed to a number of individualized inquiries.

7

8 251 F.R.D. at 486. The court decertified the class because the

9 plaintiff failed "to provide common evidence to support

10 extrapolation from individual experiences to a class-wide judgment

11 that is not merely speculative." Id. The Ninth Circuit affirmed,

12 as explained supra. See also Wells Fargo II, 268 F.R.D. at 612

13 (denying class certification in overtime exemption case because

14 differences among class members rendered representative testimony

15 insufficient common proof of misclassification); Whiteway v. FedEx

16 Kinkos Office and Print Servs., Inc., No. 05-CV-02320 (N.D. Cal.

17 Oct. 2, 2009) (decertifying class in overtime exemption case

18 because plaintiff could not show how testimony of 10-20 class

19 members could be extrapolated to the class).

20

Because it is no longer viable to consider the payroll

21 certifications reliable common proof of how class members were

22 spending their time, there is no basis for distinguishing this case

23 from those in which this district has found certification improper.

24 As in those cases, the failure of Plaintiffs here to offer a basis

25 for extrapolation of representative testimony to the class as a

26 whole is fatal to continued certification.

27 ///

28 ///

17

Case3:07-cv-02050-SC Document320 Filed07/08/11 Page18 of 19

United States District Court
For the Northern District of California

1

3. Plaintiffs' Other Evidence Does Not Provide Common

2

Proof of How Class Members Spent Their Time

3

Plaintiffs contend that, even if the payroll certification

4 forms are not reliable, class-wide liability may be tried by a

5 plethora of other common evidence. Pls.' Br. at 10. Plaintiffs

6 have presented evidence of Dollar Tree's centralized operational

7 and human resources hierarchy. See Runnings action, ECF No. 124

8 ("Pls.' Am. Mot. for Class Cert."). They have likewise presented

9 evidence that all store managers are given uniform training and

10 training-related materials, use the same on-the-job tools, receive

11 "daily planners" that require them to perform certain tasks, and

12 are subject to other Dollar Tree policies intended to standardize

13 the experiences of all store managers. Id.

14

While this evidence does provide some proof that class members

15 shared a number of common employment experiences, it does not

16 provide common proof of whether they were spending more than fifty

17 percent of their time performing exempt tasks. As the Ninth

18 Circuit explained in Marlo II, the existence of "documents

19 explaining the activities that [managers] are expected to perform,

20 and procedures that [managers] should follow . . . does not

21 establish whether [the managers] actually are 'primarily engaged'

22 in exempt activities during the course of the workweek." 2011 U.S.

23 App. LEXIS 8664, at *13. This evidence is therefore insufficient

24 to establish that common issues will predominate over

25 individualized ones at trial.

26 ///

27 ///

28 ///

18

Case3:07-cv-02050-SC Document320 Filed07/08/11 Page19 of 19

United States District Court
For the Northern District of California

1 V. CONCLUSION

2

For the foregoing reasons, the Court finds that continued

3 class treatment is not appropriate in this case and DECERTIFIES the

4 class. The Court invites Class Counsel to file a motion to

5 equitably toll the statute of limitations on the misclassification

6 claims of former class members to preserve their right to pursue

7 individual claims against Dollar Tree. The Court encourages the

8 parties to resolve this issue by stipulation.

9

The parties shall appear for a Case Management Conference on

10 September 9, 2011 at 10:00 a.m. in Courtroom 1, on the 17th floor,

11 U.S. Courthouse, 450 Golden Gate Avenue, San Francisco, CA 94102.

12

13

14

IT IS SO ORDERED.

15

16

Dated: July 7, 2011

17

UNITED STATES DISTRICT JUDGE

18

19

20

21

22

23

24

25

26

27

28

19

 
 Case3:07-cv-02050-SC Document321 Filed07/18/11 Page1 of 2

United States District Court
For the Northern District of California

1

2

3

4

IN THE UNITED STATES DISTRICT COURT

5

FOR THE NORTHERN DISTRICT OF CALIFORNIA

6

7 MIGUEL A. CRUZ, and JOHN D. HANSEN,
8 Plaintiffs,
9 v.
10 DOLLAR TREE STORES, INC.,
11 Defendant.
12
13 ROBERT RUNNINGS,
14 Plaintiff,
15 v.
16 DOLLAR TREE STORES, INC.,
17 Defendant.
18
19

) Case Nos. 07-2050 SC

)

07-4012 SC

)

) )

ORDER DENYING PLAINTIFFS'

) MOTION FOR PRETRIAL ORDER

) NO. 1 AND DEFENDANT'S

) MOTION TO BIFURCATE

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

20

Before the Court are two motions: a Motion to Bifurcate the

21 Liability and Damages Phases of Trial, filed by Defendant Dollar

22 Tree Stores, Inc., ECF No. 277; and a Motion for Pre-Trial Order

23 Number One, filed by Plaintiffs Miguel Cruz, John Hansen, and 24 Robert Runnings, ECF No. 290.1 Both motions ask the Court to rule

25 on various trial management issues.

26 1 Cruz v. Dollar Tree, Case No. 07-2050 ("Cruz action"), and
27 Runnings v. Dollar Tree, Case No. 07-4012 ("Runnings action"), have been consolidated. Unless otherwise noted, all docket numbers in
28 this Order refer to docket entries in the Cruz action.

Case3:07-cv-02050-SC Document321 Filed07/18/11 Page2 of 2

United States District Court
For the Northern District of California

1

On July 7, 2011, after these motions were filed, the Court

2 issued an order decertifying the class in this case. ECF No. 320.

3 In light of decertification, many of the issues raised in the

4 motions are no longer relevant. The issues that remain relevant --

5 such as bifurcation and the order of presentation -- now arise in a

6 dramatically altered context. Accordingly, the Court DENIES both

7 motions as moot.

8

The parties are ordered to meet and confer to discuss how

9 trial should proceed in light of the decertification order. The

10 parties shall file a joint statement with the Court identifying the

11 trial management issues that remain to be resolved. This statement

12 shall be filed no later than seven (7) days before the Case

13 Management Conference scheduled for September 9, 2011 at 10:00 a.m.

14 in Courtroom 1, on the 17th floor, U.S. Courthouse, 450 Golden Gate

15 Avenue, San Francisco, California 94102.

16

17

IT IS SO ORDERED.

18

19

Dated: July 18, 2011

20

UNITED STATES DISTRICT JUDGE

21

22

23

24

25

26

27

28

2

 
 Case3:07-cv-02050-SC Document113 Filed07/02/09 Page1 of 6

United States District Court
For the Northern District of California

1

2

3

4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6

MIGUEL A. CRUZ, and JOHN D. HANSEN,) Case Nos. 07-2050 SC

7 individually and on behalf of all )

07-4012 SC

others similarly situated,

)

8

)

Plaintiffs,

) ORDER RE: NOTICE TO

9

) THE CLASS

v.

)

10

)

DOLLAR TREE STORES, INC.,

)

11

)

Defendant.

)

12 ___________________________________)

)

13 ROBERT RUNNINGS, individually, and )

on behalf of all others similarly )

14 situated,

)

Plaintiffs,

)

15

)

v.

)

16

)

DOLLAR TREE STORES, INC.,

)

17

)

Defendant.

)

18

)

19 I. INTRODUCTION

20

On June 25, 2009, Plaintiffs Robert Runnings, Miguel Cruz,

21 and John Hansen (collectively "Plaintiffs") submitted a brief in

22 support of their proposed form of notice to the class. Docket No.

23 174 ("Pls.' Br.").1 On the same day, Defendant Dollar Tree

24 Stores, Inc. ("Defendant" or "Dollar Tree") filed a Memorandum in

25 Support of Defendant Dollar Tree's Form of Class Notice. Docket

26 No. 177 ("Def.'s Mem."). Having read and considered the arguments

27 1 Unless otherwise noted, all docket numbers refer to entries
28 in Case No. 07-4012.

Case3:07-cv-02050-SC Document113 Filed07/02/09 Page2 of 6

United States District Court
For the Northern District of California

1 presented, the Court resolves the parties' remaining disagreements

2 as explained below.

3

4 II. BACKGROUND

5

On May 26, 2009, the Court granted Plaintiff's Amended Motion

6 for Class Certification. Docket No. 171 ("May 26, 2009 Order").

7 The Court defined the class as "[a]ll persons who were employed by

8 Dollar Tree Stores, Inc. as California retail Store Managers at

9 any time on or after December 12, 2004." Id. at 25. The Court

10 ordered the parties to meet and confer with respect to the

11 requirements of Federal Rule of Civil Procedure 23(c)(2)(B)

12 governing notice to the class. Id. To the extent the parties

13 could not reach an agreement, they were permitted to submit briefs

14 addressing the problem and proposing a solution. Id.

15

16 III. LEGAL STANDARD

17

After the court certifies a class under Federal Rule of Civil

18 Procedure 23(b)(3), the court must direct to class members the

19 best notice practicable under the circumstances. Fed. R. Civ. P.

20 23(c)(2)(B). The notice must concisely state in plain, easily

21 understood language: (i) the nature of the action; (ii) the

22 definition of the class certified; (iii) the class claims,

23 issues, or defenses; (iv) that a class member may enter an

24 appearance through an attorney if the member so desires; (v) that

25 the court will exclude from the class any member who requests

26 exclusion; (vi) the time and manner for requesting exclusion; and

27 (vii) the binding effect of a class judgment on class members

28

2

Case3:07-cv-02050-SC Document113 Filed07/02/09 Page3 of 6

United States District Court
For the Northern District of California

1 under Federal Rule of Civil Procedure 23(c)(3). Id.

2

3 IV. DISCUSSION

4

A. Notice Administrator

5

The parties agree that Rust Consulting, Inc. will be the

6 third-party vendor mailing and managing the notices, but disagree

7 about whether the vendor should be referred to in the notice as

8 the "Claims Administrator" or the "Notice Administrator." See

9 Pls.' Br. at 2; Def.'s Mem. at 1. The Court finds that the notice

10 will be more easily understood by potential class members if Rust

11 Consulting, Inc. is referred to as the Notice Administrator.

12 After the notification process is complete, the third-party vendor

13 may be referred to in any subsequent mailings to the class members

14 as the Claims Administrator.

15

B. The End Date of the Class Period

16

Dollar Tree takes the position that the class certification

17 period should end on the date of the Court's class certification

18 Order, May 26, 2009. Def.'s Mem. at 2. Plaintiffs take the

19 position that, since the class definition does not include an end

20 date, the Notice Administrator should continue to notify new class

21 members on a quarterly basis, and the class period should be left

22 open through trial. Pls.' Br. at 3, 5.

23

Rule 23 requires the Court to direct to class members the

24 best notice that is practicable under the circumstances. Fed. R.

25 Civ. P. 23(c)(2)(B). The Court agrees with Dollar Tree that it is

26 not practicable to send newly hired store managers ongoing notices

27 on a periodic basis. See In re Wal-Mart Stores, Inc. Wage and

28

3

Case3:07-cv-02050-SC Document113 Filed07/02/09 Page4 of 6

United States District Court
For the Northern District of California

1 Hour Litig., No. 06-2069, 2008 WL 1990806, at *5-6 (N.D. Cal. May

2 5, 2008)(determining that ongoing notices to future class members

3 would be impracticable and modifying class definition to include

4 new end date). The Court has discretion to amend the order

5 granting class certification before final judgment. Fed. R. Civ.

6 P. 23(c)(1)(C). Therefore, the Court re-defines the class to

7 include an end date of May 26, 2009, the date on which this Court

8 certified the class. See Ansoumana v. Gristede's Operating Corp.,

9 201 F.R.D. 81, 85 n.2 (S.D.N.Y. 2001)(fixing end date of class

10 period as date of decision certifying class). The class is

11 defined as "[a]ll persons who were employed by Dollar Tree Stores,

12 Inc. as California retail Store Managers at any time on or after

13 December 12, 2004, and on or before May 26, 2009."

14

C. The Opt-Out Form

15

On June 8, 2009, counsel for Dollar Tree mailed to Scott Cole

16 & Associates a proposed Class Notice that included an opt-out

17 form. Decl. of Scott Cole Ex. B ("June 8, 2009 Letter").2

18 Plaintiffs object to Dollar Tree's proposed opt-out form on the

19 grounds that notice recipients might exclude themselves from the

20 class by mistake. Pls.' Br. at 4. Requiring notice recipients to

21 mail a form to the Notice Administrator is a common method for

22 opting out of a class action. See Tierno v. Rite Aid Corp., No.

23 05-2520, 2007 WL 4166028, at *2 (N.D. Cal. Nov. 19, 2007). The

24 Court finds that the notice should include the opt-out form

25

26

2 Scott Edward Cole, the principal of the law offices of Scott

Cole & Associates, filed a declaration in support of Plaintiffs' 27 Brief. Docket No. 176.

28

4

Case3:07-cv-02050-SC Document113 Filed07/02/09 Page5 of 6

United States District Court
For the Northern District of California

1 included in Appendix A to the Memorandum in Support of Defendant

2 Dollar Tree's Form of Class Notice. See Docket No. 177.

3

D. Notice Timeline

4

The parties disagree concerning various deadlines associated

5 with the notification process. See Pls.' Br. at 2-5; Def.'s Mem.

6 at 4-5. The Court has considered the parties' suggestions, and

7 considers the following deadlines to be fair and reasonable.

8 Dollar Tree shall provide contact information to the Notice

9 Administrator within forty-five (45) days of this Order. The

10 Notice Administrator should mail the class notice within thirty

11 (30) days of receipt of the contact information. Notice

12 recipients should be provided with adequate time to consider

13 whether they want to exclude themselves from his lawsuit,

14 including time to consult with an attorney if necessary.

15 Therefore, the Court adopts an opt-out period of sixty (60) days.

16 If a notice is returned as undeliverable, refused, or unclaimed,

17 the Notice Administrator has fifteen (15) days to initiate a good

18 faith search for the current address using Lexis-Nexis/Accurint,

19 and, if a different address is found, mail the notice to the new

20 address.

21

22 V. CONCLUSION

23

For the reasons stated above, the Court ORDERS as follows:

24

1. The class is defined as: All persons who were employed

25

by Dollar Tree Stores, Inc. as California retail Store

26

Managers at any time on or after December 12, 2004, and

27

on or before May 26, 2009.

28

5

Case3:07-cv-02050-SC Document113 Filed07/02/09 Page6 of 6

United States District Court
For the Northern District of California

1

2. The notice should include an opt-out form.

2

3. Dollar Tree shall provide to Rust Consulting, Inc. the

3

names, last-known addresses, and social security numbers

4

of the notice recipients within forty-five (45) days

5

after the date of this Order. The Notice Administrator

6

shall not disclose this information to Plaintiffs or

7

Class Counsel.

8

4. Rust Consulting, Inc. shall have thirty (30) days after

9

receipt of the class list to send notices, including an

10

opt-out form, by first-class mail.

11

5. The time period for opting out is sixty (60) days from

12

the date the notice is mailed.

13

6. If a notice is returned as undeliverable, refused, or

14

unclaimed, the Notice Administrator has fifteen (15)

15

days to initiate a good faith search for the current

16

address using Lexis-Nexis/Accurint, and, if a different

17

address is found, mail the notice to the new address.

18

Notice recipients to whom a second notice is sent shall

19

have thirty (30) days from the date of the second notice

20

to request exclusion.

21

22

IT IS SO ORDERED.

23

24

Dated: July 2, 2009

25 UNITED STATES DISTRICT JUDGE
26

27

28

6

 
 Case: 3:07-cv-2050 As of: 11/06/2016 09:14 PM PST 1 of 32
ADRMOP,CLOSED,CONSOL,E−Filing,ENETERM,PROTO
U.S. District Court California Northern District (San Francisco) CIVIL DOCKET FOR CASE #: 3:07−cv−02050−SC

Cruz et al v. Dollar Tree Stores, Inc. Assigned to: Hon. Samuel Conti Referred to: Magistrate Judge Joseph C. Spero Cause: 29:201 Fair Labor Standards Act
Plaintiff
Miguel A. Cruz Individually and on behalf of all others similarly situated

Date Filed: 04/11/2007 Date Terminated: 12/09/2011 Jury Demand: Plaintiff Nature of Suit: 790 Labor: Other Jurisdiction: Federal Question
represented by Donald S. Edgar SMITH DOLLAR PC 404 Mendocino Avenue, Second Floor Santa Rosa, CA 95401 707−522−1100 Fax: 707−522−1101 Email: dedgar@smithdollar.com TERMINATED: 01/26/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeffrey Rex Grady Smith Dollar PC 404 Mendocino Avenue, Second Floor Santa Rosa, CA 95401 707−522−1100 Fax: 707−522−1101 Email: jrg@classattorneys.com TERMINATED: 01/26/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeremy R. Fietz Adams Fietz 1510 4th Street Santa Rosa, CA 95404 707−999−9999 Fax: 707−595−4473 Email: jeremy@adamsfietz.com TERMINATED: 01/26/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Molly Ann DeSario Scott Cole & Associates, APC 1970 Broadway, Ninth Floor Oakland, CA 94612 510−891−9800 Fax: 510−891−7030 Email: molly@bamlawca.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Eileen Marie Bissen Neyhart Anderson Flynn & Grosboll, APC 369 Pine Street, Suite 800 San Francisco, CA 94104−3323 415−677−9440 Fax: 415−677−9445 Email: ebissen@neyhartlaw.com ATTORNEY TO BE NOTICED

Case: 3:07-cv-2050 As of: 11/06/2016 09:14 PM PST 2 of 32

Plaintiff John D. Hansen Individually and on behalf of all others similarly situated
Plaintiff Robert Runnings

Scott Edward Cole Scott Cole & Associates, APC 1970 Broadway Suite 950 Oakland, CA 94612 (510) 891−9800 Fax: 510−891−7030 Email: scole@scalaw.com ATTORNEY TO BE NOTICED
represented by Donald S. Edgar (See above for address) TERMINATED: 01/26/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey Rex Grady (See above for address) TERMINATED: 01/26/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeremy R. Fietz (See above for address) TERMINATED: 01/26/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Molly Ann DeSario (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Eileen Marie Bissen (See above for address) ATTORNEY TO BE NOTICED
Scott Edward Cole (See above for address) ATTORNEY TO BE NOTICED
represented by Carrie S. Lin Cooley Manion Jones Hake & Kurowski 201 Spear Street, Suite 1800 San Francisco, CA 94105 415−512−4381 Fax: 415−512−6791 Email: clin@cmjhklaw.com TERMINATED: 10/15/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Clyde Hobbs Charlton Invalid email address as of 02/04/08 Email: invalidaddress@invalidaddress.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kevin Robert Allen Allen Attorney Group 2121 N.California Blvd.

Case: 3:07-cv-2050 As of: 11/06/2016 09:14 PM PST 3 of 32
Suite 290 Walnut Creek, CA 94596 925−695−4913 Fax: 925−334−7477 Email: kevin@allenattorneygroup.com TERMINATED: 05/11/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matthew Roland Bainer Capstone Law APC 1840 Century Park East Suite 450 Los Angeles, CA 90067 310−556−4811 Fax: 310−943−0396§ Email: Matthew.Bainer@capstonelawyers.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott Edward Cole (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Eileen Marie Bissen (See above for address) ATTORNEY TO BE NOTICED
Molly Ann DeSario (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Dollar Tree Stores, Inc.

represented by Maureen E. McClain Littler Mendelson 650 California Street 20th Floor San Francisco, CA 94108−2693 415−433−1940 Fax: 415−399−8940 Email: mmcclain@littler.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alex Hernaez Fox Rothschild LLP 345 California Street Suite 2200 San Francisco, CA 94104 415−364−5540 Fax: 415−391−4436 Email: ahernaez@foxrothschild.com TERMINATED: 07/02/2008 ATTORNEY TO BE NOTICED
AnnaMary Elizabeth Gannon Dillingham & Murphy, LLP 601 California Street, Suite 1900 (12/1/12) San Francisco, CA 94108 415−397−2700 Fax: 415−397−3300

Case: 3:07-cv-2050 As of: 11/06/2016 09:14 PM PST 4 of 32
Email: amg@dillinghammurphy.com ATTORNEY TO BE NOTICED
Beth Hirsch Berman Williams Mullen Dominion Tower, Suite 1700 999 Waterside Drive Norfolk, VA 23510 757−629−0604 Fax: 757−629−0660 Email: bberman@williamsmullen.com ATTORNEY TO BE NOTICED
Krista Stevenson Johnson Littler, Mendelson 333 Bush Street, 34th Floor San Francisco, Ca 94104 (415) 433−1940 Email: ksjohnson@sheppardmullin.com ATTORNEY TO BE NOTICED
Matthew P. Vandall LITTLER MENDELSON 650 California Street 20th Floor San Francisco, CA 94108.2693 415 433 1940 Fax: 415.399.8490 TERMINATED: 05/11/2012 ATTORNEY TO BE NOTICED
Robert Louis Zaletel Littler Mendelson 333 Bush Street 34th Floor San Francisco, CA 94104 415−433−1940 Fax: 415−399−8490 Email: rzaletel@littler.com ATTORNEY TO BE NOTICED

Date Filed 04/11/2007
04/11/2007
04/11/2007 05/03/2007 05/08/2007

# Docket Text
1 COMPLAINT / issued summons against Dollar Tree Stores, Inc. ( Filing fee $ 350,receipt number 34611005189.). Filed byMiguel A. Cruz, John D. Hansen. (ga, COURT STAFF) (Filed on 4/11/2007) Additional attachment(s) added on 5/17/2007 (aaa, Court Staff). (Entered: 04/13/2007)
2 ADR SCHEDULING ORDER: Case Management Statement due by 7/25/2007. Case Management Conference set for 8/1/2007 10:30 AM.. Signed by Judge James Larson on 4/11/07. (Attachments: # 1 Judge Standing Order# 2 Court Standing Order# 3 Consent/Decline Form)(ga, COURT STAFF) (Filed on 4/11/2007) (Entered: 04/13/2007)
CASE DESIGNATED for Electronic Filing. (ga, COURT STAFF) (Filed on 4/11/2007) (Entered: 04/13/2007)
3 MOTION for attorney Beth Hirsch Berman leave to appear in Pro Hac Vice ( Filing fee $ 210, receipt number 34611005934.) filed by Dollar Tree Stores, Inc.. (ga, COURT STAFF) (Filed on 5/3/2007) (Entered: 05/04/2007)
4 Declination to Proceed Before a U.S. Magistrate Judge by Dollar Tree Stores, Inc. AND REQUEST FOR REASSIGNMENT TO A UNITED STATES DISTRICT JUDGE. (Hernaez, Alex) (Filed on 5/8/2007) (Entered: 05/08/2007)

Case: 3:07-cv-2050 As of: 11/06/2016 09:14 PM PST 5 of 32

05/09/2007
05/09/2007 05/10/2007 05/11/2007
05/11/2007
05/14/2007 05/14/2007 05/15/2007 05/17/2007
05/17/2007 05/22/2007 05/22/2007 06/08/2007 06/08/2007 06/08/2007 06/15/2007
06/29/2007

5 MOTION to Dismiss DEFENDANT DOLLAR TREE STORES, INC.'S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS' COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF filed by Dollar Tree Stores, Inc.. (Hernaez, Alex) (Filed on 5/9/2007) (Entered: 05/09/2007)
6 CLERK'S NOTICE of Impending Reassignment to U.S. District Judge (wh, COURT STAFF) (Filed on 5/9/2007) (Entered: 05/09/2007)
7 CLERK'S NOTICE re: Plaintiffs Failure to E−File 1 Complaint and/or Failure to Register as an E−Filer (ga, COURT STAFF) (Filed on 5/10/2007) (Entered: 05/10/2007)
8 ORDER REASSIGNING CASE. Case reassigned to Judge Samuel Conti for all further proceedings. Judge James Larson no longer assigned to the case. Signed by Executive Committee on 5/11/07. (ha, COURT STAFF) (Filed on 5/11/2007) (Entered: 05/11/2007)
11 AMENDED MOTION for leave for admission of Attorney Beth Hirsch Berman to appear in Pro Hac Vice ( Filing fee $ 210.00, receipt number 34611005934.) filed by Dollar Tree Stores, Inc. Re 3 Motion. (aaa, Court Staff) (Filed on 5/11/2007) (Entered: 05/15/2007)
9 CLERK'S NOTICE Continuing Defendant's Motion to Dismiss Hearing Motion Hearing set for 6/29/2007 10:00 AM. (tdm, COURT STAFF) (Filed on 5/14/2007) (Entered: 05/14/2007)
10 CLERK'S NOTICE Case Management Conference set for 8/17/2007 10:00 AM. (tdm, COURT STAFF) (Filed on 5/14/2007) (Entered: 05/14/2007)
Sent to Plaintiff(s) Attorney(s) by U.S. Mail Certified Copies of re 8 Order Reassigning Case, 7 Clerks Notice re: Failure to E−File/E−Mail Complaint and Register as an e−filer. (aaa, Court Staff) (Filed on 5/15/2007) (Entered: 05/15/2007)
12 Proposed Order re 11 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 210.00, receipt number 3461100593.) PROPOSED ORDER GRANTING APPLICATION FOR ADMISSION OF ATOTRNEY PRO HAC VICE by Dollar Tree Stores, Inc.. (Hernaez, Alex) (Filed on 5/17/2007) (Entered: 05/17/2007)
13 ORDER by Judge Samuel Conti 11 Motion for Pro Hac Vice (tdm, COURT STAFF) (Filed on 5/17/2007) (Entered: 05/17/2007)
14 Certificate of Interested Entities DEFENDANT DOLLAR TREE STORES, INC.'S CERTIFICATION OF INTERESTED ENTITIES OR PERSONS (McClain, Maureen) (Filed on 5/22/2007) (Entered: 05/22/2007)
15 CERTIFICATE OF SERVICE by Dollar Tree Stores, Inc. re 14 Certificate of Interested Entities (McClain, Maureen) (Filed on 5/22/2007) (Entered: 05/22/2007)
16 Memorandum in Opposition To Defendant's 5 Motion To Dismiss filed byMiguel A. Cruz, John D. Hansen. (Fietz, Jeremy) (Filed on 6/8/2007) Modified on 6/11/2007 (aaa, Court Staff). (Entered: 06/08/2007)
17 Proposed Order Denying Defendant's 5 Motion To Dismiss by Miguel A. Cruz, John D. Hansen. (Fietz, Jeremy) (Filed on 6/8/2007) Modified on 6/11/2007 (aaa, Court Staff). (Entered: 06/08/2007)
Failure to Hyper−Link 16 Memorandum in Opposition, 17 Proposed Order. The civil docket has been corrected to reflect the hyper−links to the supporting documents. (aaa, Court Staff) (Filed on 6/8/2007) (Entered: 06/11/2007)
18 Reply to Opposition re 5 MOTION to Dismiss DEFENDANT DOLLAR TREE STORES, INC.'S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS' COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF REPLY TO PLAINTIFFS' OPPOSITION TO DEFENDANT'S MOTION TO DISMISS PLAINTIFFS' COMPLAINT filed byDollar Tree Stores, Inc.. (Hernaez, Alex) (Filed on 6/15/2007) (Entered: 06/15/2007)
19 ORDER by Judge Samuel Conti granting 5 Motion to Dismiss Fraud Claim without prejudice (sclc2, COURT STAFF) (Filed on 6/29/2007) (Entered: 06/29/2007)

Case: 3:07-cv-2050 As of: 11/06/2016 09:14 PM PST 6 of 32

07/19/2007 07/26/2007 07/26/2007 07/27/2007 07/30/2007 08/09/2007
08/09/2007
08/09/2007 08/10/2007 08/15/2007 08/15/2007
08/15/2007 08/16/2007 08/21/2007 08/31/2007 08/31/2007

20 ***DOCUMENT FILED IN ERROR − PLEASE DISREGARD*** ADR Clerks Notice re: Non−Compliance with Court Order. (tjs, COURT STAFF) (Filed on 7/19/2007) Modified on 7/19/2007 (tjs, COURT STAFF). (Entered: 07/19/2007)
21 ADR Certification (ADR L.R. 3−5b) of discussion of ADR options ADR Certification by Parties and Counsel (McClain, Maureen) (Filed on 7/26/2007) (Entered: 07/26/2007)
22 STIPULATION and Proposed Order selecting Early Neutral Evaluation by Dollar Tree Stores, Inc. Stipulation and [Proposed] Order Selecting ADR Process (McClain, Maureen) (Filed on 7/26/2007) (Entered: 07/26/2007)
23 AMENDED COMPLAINT [Class Action] against Dollar Tree Stores, Inc.. Filed byMiguel A. Cruz, John D. Hansen. (Fietz, Jeremy) (Filed on 7/27/2007) (Entered: 07/27/2007)
24 STIPULATION AND ORDER REFERRING CASE to Early Neutral Evaluation. Signed by Judge Samuel Conti on 7/30/07. (tdm, COURT STAFF) (Filed on 7/30/2007) (Entered: 07/30/2007)
25 MOTION to Dismiss − Notice of Motion and Motion to Dismiss Plaintiffs' First Amended Complaint; Memorandum of Points and Authorities in Support Thereof filed by Dollar Tree Stores, Inc.. Motion Hearing set for 9/21/2007 10:00 AM in Courtroom 1, 17th Floor, San Francisco. (Hernaez, Alex) (Filed on 8/9/2007) (Entered: 08/09/2007)
26 Proposed Order re 25 MOTION to Dismiss − Notice of Motion and Motion to Dismiss Plaintiffs' First Amended Complaint; Memorandum of Points and Authorities in Support Thereof Proposed Order Granting Defendant's Motion to Dismiss Plaintiffs' Fraud and Deceit Claim from Plaintiff's First Amended Complaint by Dollar Tree Stores, Inc.. (Hernaez, Alex) (Filed on 8/9/2007) (Entered: 08/09/2007)
27 Certificate of Interested Entities by Jeremy R. Fietz (Fietz, Jeremy) (Filed on 8/9/2007) (Entered: 08/09/2007)
28 JOINT CASE MANAGEMENT STATEMENT filed by Miguel A. Cruz, John D. Hansen. (Fietz, Jeremy) (Filed on 8/10/2007) (Entered: 08/10/2007)
29 MOTION to Relate Case ADMINISTRATIVE MOTION TO CONSIDER WHETHER CASES SHOULD BE RELATED; DECLARATION OF ALEX HERNAEZ IN SUPPORT THEREOF filed by Dollar Tree Stores, Inc.. (Hernaez, Alex) (Filed on 8/15/2007) (Entered: 08/15/2007)
30 Proposed Order re 29 MOTION to Relate Case ADMINISTRATIVE MOTION TO CONSIDER WHETHER CASES SHOULD BE RELATED; DECLARATION OF ALEX HERNAEZ IN SUPPORT THEREOF [PROPOSED] ORDER GRANTING DEFENDANT'S ADMINISTRATIVE MOTION TO CONSIDER WHETHER CASES SHOULD BE RELATED by Dollar Tree Stores, Inc.. (Hernaez, Alex) (Filed on 8/15/2007) (Entered: 08/15/2007)
31 CERTIFICATE OF SERVICE by Dollar Tree Stores, Inc. re 29 MOTION to Relate Case ADMINISTRATIVE MOTION TO CONSIDER WHETHER CASES SHOULD BE RELATED; DECLARATION OF ALEX HERNAEZ IN SUPPORT THEREOF (Hernaez, Alex) (Filed on 8/15/2007) (Entered: 08/15/2007)
32 CLERK'S NOTICE Case Management Conference set for 8/17/07 is continued to 11/16/2007 10:00 AM. (tdm, COURT STAFF) (Filed on 8/16/2007) (Entered: 08/16/2007)
33 Statement of Non−Opposition 29 to Defendants Administrative Motion to Consider Whether Cases should be related filed byRobert Runnings. (Cole, Scott) (Filed on 8/21/2007) Modified on 8/28/2007 (sis, COURT STAFF). (Entered: 08/21/2007)
34 ORDER by Judge Samuel Conti granting 29 Motion to Relate Case C−07−4012 (tdm, COURT STAFF) (Filed on 8/31/2007) (Entered: 08/31/2007)
35 Memorandum in Opposition 25 To Defendant's Motion to Dismiss Fraud filed byMiguel A. Cruz, John D. Hansen. (Fietz, Jeremy) (Filed on 8/31/2007) Modified on 9/4/2007 (sis, COURT STAFF). (Entered: 08/31/2007)

Case: 3:07-cv-2050 As of: 11/06/2016 09:14 PM PST 7 of 32

09/07/2007
09/12/2007 09/18/2007 10/02/2007 10/19/2007 10/24/2007 11/09/2007 11/16/2007 11/16/2007 11/20/2007 11/20/2007 11/21/2007 11/27/2007 01/19/2008
01/19/2008
01/19/2008 01/19/2008

36 Reply to Opposition re 25 MOTION to Dismiss − Notice of Motion and Motion to Dismiss Plaintiffs' First Amended Complaint; Memorandum of Points and Authorities in Support Thereof filed byDollar Tree Stores, Inc.. (Hernaez, Alex) (Filed on 9/7/2007) (Entered: 09/07/2007)
37 ADR Clerk's Notice Appointing Sandra R. McCandless as ENE Evaluator. (cmf, COURT STAFF) (Filed on 9/12/2007) (Entered: 09/12/2007)
38 ORDER by Judge Samuel Conti granting 25 Motion to Dismiss (sclc2, COURT STAFF) (Filed on 9/18/2007) (Entered: 09/18/2007)
39 DEFENDANT DOLLAR TREE STORES, INC.'S ANSWER TO PLAINTIFFS' FIRST AMENDED COMPLAINT ANSWER to Amended Complaint byDollar Tree Stores, Inc.. (Hernaez, Alex) (Filed on 10/2/2007) (Entered: 10/02/2007)
40 STIPULATION AND [PROPOSED] PROTECTIVE ORDER by Dollar Tree Stores, Inc.. (McClain, Maureen) (Filed on 10/19/2007) (Entered: 10/19/2007)
41 STIPULATION AND PROTECTIVE ORDER. Signed by Judge Samuel Conti on 10/22/07. (tdm, COURT STAFF) (Filed on 10/24/2007) (Entered: 10/24/2007)
42 JOINT CASE MANAGEMENT STATEMENT filed by Dollar Tree Stores, Inc.. (McClain, Maureen) (Filed on 11/9/2007) (Entered: 11/09/2007)
43 Proposed Order Joint Stipulation and (Proposed Order) for Consolidation of Actions by Dollar Tree Stores, Inc.. (McClain, Maureen) (Filed on 11/16/2007) (Entered: 11/16/2007)
44 Minute Entry: Case Management Conference held on 11/16/2007 before Judge Samuel Conti (Date Filed: 11/16/2007). (Court Reporter Bell Ball.) (tdm, COURT STAFF) (Date Filed: 11/16/2007) (Entered: 11/16/2007)
Pre ENE phone conference scheduled on 11/26/2007 at 3:00 p.m. (cmf, COURT STAFF) (Filed on 11/20/2007) (Entered: 11/20/2007)
45 STIPULATION ANDN ORDER OF CONSOLIDATION. Signed by Judge Samuel Conti on 11/20/07. (tdm, COURT STAFF) (Filed on 11/20/2007) (Entered: 11/20/2007)
46 Proposed Order Stipulation and [Proposed] Order Extending Deadline to Hold an ENE Session and a Pre−Session Telephone Conference by Dollar Tree Stores, Inc.. (McClain, Maureen) (Filed on 11/21/2007) (Entered: 11/21/2007)
47 STIPULATION AND ORDER Extending Deadline to Hold an ENE Session and a Pre−Session Telephone Conference. Signed by Judge Samuel Conti on 11/26/07. (tdm, COURT STAFF) (Filed on 11/27/2007) (Entered: 11/27/2007)
48 MOTION for Summary Judgment DEFENDANT DOLLAR TREE STORES, INC.'S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT AS TO JOHN HANSEN; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF filed by Dollar Tree Stores, Inc.. (Hernaez, Alex) (Filed on 1/19/2008) (Entered: 01/19/2008)
49 Declaration of BETH HIRSCH BERMAN in Support of 48 MOTION for Summary Judgment DEFENDANT DOLLAR TREE STORES, INC.'S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT AS TO JOHN HANSEN; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF filed byDollar Tree Stores, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Related document(s) 48 ) (Hernaez, Alex) (Filed on 1/19/2008) (Entered: 01/19/2008)
50 Declaration OF CHARLOTTA JACOBSON−ALLEN filed byDollar Tree Stores, Inc.. (Hernaez, Alex) (Filed on 1/19/2008) (Entered: 01/19/2008)
51 Declaration of PAULA BRADY in Support of 48 MOTION for Summary Judgment DEFENDANT DOLLAR TREE STORES, INC.'S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT AS TO JOHN HANSEN; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF filed byDollar Tree Stores, Inc.. (Related document(s) 48 ) (Hernaez, Alex) (Filed on 1/19/2008) (Entered: 01/19/2008)

Case: 3:07-cv-2050 As of: 11/06/2016 09:14 PM PST 8 of 32

01/19/2008
01/19/2008
01/19/2008
01/19/2008 02/05/2008 02/13/2008 02/13/2008
02/15/2008 02/29/2008 02/29/2008 02/29/2008 03/14/2008

52 Declaration of CARLOS HERNANDEZ in Support of 48 MOTION for Summary Judgment DEFENDANT DOLLAR TREE STORES, INC.'S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT AS TO JOHN HANSEN; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF filed byDollar Tree Stores, Inc.. (Attachments: # 1 Exhibit 1 − 4, # 2 Exhibit 5 − 9, # 3 Exhibit 10 − 14)(Related document(s) 48 ) (Hernaez, Alex) (Filed on 1/19/2008) (Entered: 01/19/2008)
53 *** FILED IN ERROR. PLEASE DISREGARD. *** MOTION for Summary Judgment DEFENDANT DOLLAR TREE STORES, INC.'S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT AS TO ROBERT RUNNINGS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF filed by Dollar Tree Stores, Inc.. (Hernaez, Alex) (Filed on 1/19/2008) Modified on 1/22/2008 (feriab, COURT STAFF). (Entered: 01/19/2008)
54 *** FILED IN ERROR. PLEASE DISREGARD. *** Declaration of BETH HIRSCH BERMAN in Support of 53 MOTION for Summary Judgment DEFENDANT DOLLAR TREE STORES, INC.'S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT AS TO ROBERT RUNNINGS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF filed byDollar Tree Stores, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Related document(s) 53 ) (Hernaez, Alex) (Filed on 1/19/2008) Modified on 1/22/2008 (feriab, COURT STAFF). (Entered: 01/19/2008)
55 Proposed Order re 48 MOTION for Summary Judgment DEFENDANT DOLLAR TREE STORES, INC.'S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT AS TO JOHN HANSEN; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF by Dollar Tree Stores, Inc.. (Hernaez, Alex) (Filed on 1/19/2008) (Entered: 01/19/2008)
56 TRANSCRIPT of Proceedings held on November 16, 2007 before Senior Judge Samuel Conti. Court Reporter: Belle Ball. (aaa, Court Staff) (Filed on 2/5/2008) (Entered: 02/06/2008)
57 MOTION Defendant's Administrative Motion to Establish Briefing Schedule Regarding Defendant's Motions for Summary Judgment; Declaration of Alex Hernaez in Support filed by Dollar Tree Stores, Inc.. (Hernaez, Alex) (Filed on 2/13/2008) (Entered: 02/13/2008)
58 Proposed Order re 57 MOTION Defendant's Administrative Motion to Establish Briefing Schedule Regarding Defendant's Motions for Summary Judgment; Declaration of Alex Hernaez in Support [Proposed] Order Granting Defendant's Administrative Motions to Establish Briefing Schedule Re Defendant's Motions for Summary Judgment by Dollar Tree Stores, Inc.. (Hernaez, Alex) (Filed on 2/13/2008) (Entered: 02/13/2008)
59 ORDER by Judge Samuel Conti granting 57 Motion Briefing Schedule (sclc2, COURT STAFF) (Filed on 2/15/2008) (Entered: 02/15/2008)
60 Declaration of John D. Hansen In Support of 61 Opposition to Motion For Summary Judgment filed byJohn D. Hansen. (Fietz, Jeremy) (Filed on 2/29/2008) Modified on 3/3/2008 (aaa, Court Staff). (Entered: 02/29/2008)
61 Memorandum in Opposition To 48 Motion For Summary Judgment filed byJohn D. Hansen. (Fietz, Jeremy) (Filed on 2/29/2008) Modified on 3/3/2008 (aaa, Court Staff). (Entered: 02/29/2008)
62 Proposed Order Denying 48 Motion For Summary Judgment by John D. Hansen. (Fietz, Jeremy) (Filed on 2/29/2008) Modified on 3/3/2008 (aaa, Court Staff). (Entered: 02/29/2008)
63 Reply to Opposition re 48 MOTION for Summary Judgment DEFENDANT DOLLAR TREE STORES, INC.'S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT AS TO JOHN HANSEN; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF Dollar Tree Stores, Inc.'s Reply to Plaintiff John D. Hansen's Opposition to Motion for Summary Judgment filed byDollar Tree Stores, Inc.. (Hernaez, Alex) (Filed on 3/14/2008) (Entered: 03/14/2008)

Case: 3:07-cv-2050 As of: 11/06/2016 09:14 PM PST 9 of 32

03/14/2008 03/14/2008
03/14/2008
03/14/2008
04/02/2008 04/08/2008 04/08/2008 07/02/2008 07/08/2008
07/09/2008 07/30/2008 09/08/2008 09/08/2008 09/16/2008
10/10/2008 10/10/2008
10/15/2008

64 OBJECTIONS to re 60 Declaration in Support Dollar Tree Stores, Inc.'s Objections to the Declaration of John D. Hansen by Dollar Tree Stores, Inc.. (Hernaez, Alex) (Filed on 3/14/2008) (Entered: 03/14/2008)
65 Declaration in Support of 63 Reply to Opposition, Declaration of David Boltz in Support of Dollar Tree Stores, Inc.'s Reply on Summary Judgment as to John Hansen (w/Exh A) filed byDollar Tree Stores, Inc.. (Related document(s) 63 ) (Hernaez, Alex) (Filed on 3/14/2008) (Entered: 03/14/2008)
66 *** FILED IN ERROR. PLEASE REFER TO DOCUMENT 67 . *** Declaration in Support of 63 Reply to Opposition, Declaration of Beth Hirsch Berman in Support of Dollar Tree Stores, Inc.'s Reply on Summary Judgment as to John D. Hansen filed byDollar Tree Stores, Inc.. (Related document(s) 63 ) (Hernaez, Alex) (Filed on 3/14/2008) Modified on 3/14/2008 (feriab, COURT STAFF). (Entered: 03/14/2008)
67 Declaration in Support of 63 Reply to Opposition, Supplemental Declaration of Beth Hirsch Berman in Support of Dollar Tree Stores, Inc.'s Reply on Summary Judgment as to John D. Hansen (w/Exh. A) filed byDollar Tree Stores, Inc.. (Related document(s) 63 ) (Hernaez, Alex) (Filed on 3/14/2008) (Entered: 03/14/2008)
Pre ENE phone conference scheduled on 4/14/2008 at 11:00 a.m. (cmf, COURT STAFF) (Filed on 4/2/2008) (Entered: 04/02/2008)
68 ORDER REMOVING CASE FROM Early Neutral Evaluation. Signed by Judge Samuel Conti on 4/8/08. (tdm, COURT STAFF) (Filed on 4/8/2008) (Entered: 04/08/2008)
69 NOTICE of Change In Counsel by Maureen E. McClain NOTICE OF CHANGE IN COUNSEL (McClain, Maureen) (Filed on 4/8/2008) (Entered: 04/08/2008)
70 NOTICE of Change In Counsel by Maureen E. McClain (McClain, Maureen) (Filed on 7/2/2008) (Entered: 07/02/2008)
71 ORDER by Judge Samuel Conti denying (48) Motion for Summary Judgment in case 3:07−cv−02050−SC; denying (36) Motion for Summary Judgment in case 3:07−cv−04012−SC (sclc2, COURT STAFF) (Filed on 7/8/2008) (Entered: 07/08/2008)
Status Conference set for 8/1/2008 10:00 AM. (tdm, COURT STAFF) (Filed on 7/9/2008) (Entered: 07/09/2008)
72 CLERK'S NOTICE Case Management Conference set for 8/1/08 is continued to 12/5/2008 10:00 AM. (tdm, COURT STAFF) (Filed on 7/30/2008) (Entered: 07/30/2008)
73 ORDER REFERRING CASE to Magistrate Judge for Discovery purposes. Signed by Judge Samuel Conti on 9/8/08. (tdm, COURT STAFF) (Filed on 9/8/2008) (Entered: 09/08/2008)
CASE REFERRED to Magistrate Judge Joseph C. Spero for Discovery (cmw, COURT STAFF) (Filed on 9/8/2008) (Entered: 09/08/2008)
74 Notice of Reference and ORDER Re Discovery Procedures Motion Hearing set for 10/10/2008 09:30 AM in Courtroom A, 15th Floor, San Francisco.. Signed by Judge Joseph C. Spero on 9/16/08. (fj, COURT STAFF) (Filed on 9/16/2008) (Entered: 09/16/2008)
75 Minute Entry: Motion Hearing held on 10/10/2008 before Magistrate Judge Joseph C. Spero (Date Filed: 10/10/2008). (Court Reporter Kathy Wyatt; 9:31−9:43) (ls, COURT STAFF) (Date Filed: 10/10/2008) (Entered: 10/10/2008)
76 ORDER GRANTING IN PART AND DENYING MOTION TO COMPEL RESPONSES TO PLAINTIFFS' SPECIAL INTERROGATORY NO. 1;re 74 Order Set Hearings. Signed by Hon. Joseph C. Spero on 10/10/2008. (ls, COURT STAFF) (Filed on 10/10/2008) (Entered: 10/10/2008)
77 Letter from Maureen McClain and Carrie Lin dated 10/10/08. (tdm, COURT STAFF) (Filed on 10/15/2008) (Entered: 10/15/2008)

Case: 3:07-cv-2050 As of: 11/06/2016 09:14 PM PST 10 of 32

10/15/2008 10/15/2008 10/15/2008 12/05/2008 12/05/2008 12/05/2008 12/05/2008 01/02/2009 01/07/2009 01/09/2009 01/26/2009 02/20/2009 02/27/2009 03/02/2009 03/04/2009
03/09/2009 03/10/2009 03/25/2009
03/25/2009

78 ORDER REAFFIRMING CLERK'S NOTICE OF JULY 30, 2008 re (80 in 3:07−cv−04012−SC) Joint Letter. Signed by Judge Samuel Conti on 10/15/08. (tdm, COURT STAFF) (Filed on 10/15/2008) (Entered: 10/15/2008)
79 NOTICE of Change In Counsel by Matthew Roland Bainer (Bainer, Matthew) (Filed on 10/15/2008) (Entered: 10/15/2008)
80 NOTICE of Appearance by Matthew Roland Bainer (Bainer, Matthew) (Filed on 10/15/2008) (Entered: 10/15/2008)
81 ORDER TO SHOW CAUSE Order to Show Cause Hearing set for 12/12/2008 10:00 AM. Show Cause Response due by 12/10/2008.. Signed by Judge Samuel Conti on 12/5/08. (tdm, COURT STAFF) (Filed on 12/5/2008) (Entered: 12/05/2008)
82 ORDER WITHDRAWING ORDER TO SHOW CAUSE. Signed by Judge Samuel Conti on 12/5/08. (sclc1, COURT STAFF) (Filed on 12/5/2008) (Entered: 12/05/2008)
83 ORDER by Judge Samuel Conti granting Ex Parte Application (sclc2, COURT STAFF) (Filed on 11/12/2008) (Entered: 11/12/2008) (tdm, COURT STAFF) (Filed on 12/5/2008) (Entered: 12/05/2008)
84 Minute Entry: Status Conference (Date Filed: 12/5/2008). (Court Reporter Jim Yeomans.) (tdm, COURT STAFF) (Date Filed: 12/5/2008) (Entered: 12/05/2008)
85 NOTICE of Substitution of Counsel by Maureen E. McClain (McClain, Maureen) (Filed on 1/2/2009) (Entered: 01/02/2009)
86 ORDER Granting Substitution of Counsel for Defendant Dollar Tree Stores (tdm, COURT STAFF) (Filed on 1/7/2009) (Entered: 01/07/2009)
87 NOTICE of Change of Address by Maureen E. McClain (McClain, Maureen) (Filed on 1/9/2009) (Entered: 01/09/2009)
88 NOTICE of Substitution of Counsel by Scott Edward Cole (Cole, Scott) (Filed on 1/26/2009) (Entered: 01/26/2009)
89 Letter from Krista S. Johnson re: Meet and Confer. (Johnson, Krista) (Filed on 2/20/2009) (Entered: 02/20/2009)
90 STIPULATION OF PARTIES REGARDING DISCOVERY HEARING by Dollar Tree Stores, Inc.. (Johnson, Krista) (Filed on 2/27/2009) (Entered: 02/27/2009)
91 STIPULATION AND ORDER OF PARTIES REGARDING DISCOVERY HEARING. Signed by Judge Joseph C. Spero on 03/02/09. (klh, COURT STAFF) (Filed on 3/2/2009) (Entered: 03/02/2009)
92 Declaration of KRISTA S. JOHNSON PURSUANT TO CIVIL LOCAL RULE 79−5 SUPPORTING THE CONFIDENTIALITY OF DOCUMENTS FILED UNDER SEAL WITH PLAINTIFFS' MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF CLASS ACTION; PROPOSED ORDER filed byDollar Tree Stores, Inc.. (Johnson, Krista) (Filed on 3/4/2009) (Entered: 03/04/2009)
93 ORDER denying administrative motion to file under seal materials in connection with Plaintiffs' motion for class certification (sclc2, COURT STAFF) (Filed on 3/9/2009) (Entered: 03/09/2009)
94 CLERKS NOTICE taking the April 3, 2009 Case Management Conference off calendar. (tdm, COURT STAFF) (Filed on 3/10/2009) (Entered: 03/10/2009)
95 DECLARATION OF MOLLY A. KUEHN, ESQ. IN SUPPORT OF PLAINTIFFS' AMENDED ADMINISTRATIVE MOTION TO FILE UNDER SEAL MATERIALS IN CONNECTION WITH PLAINTIFF'S AMENDED MOTION FOR CLASS CERTIFICATION [CIV.L.R.7−11,79−5] filed byRobert Runnings, Miguel A. Cruz, John D. Hansen. (aaa, Court Staff) (Filed on 3/25/2009) (Entered: 03/26/2009)
96 CLERKS NOTICE to Plaintiff(s) Attorney(s) by e−mail or U.S. mail re: Failure to E−File/E−Mail re 95 Declaration and/or Failure to Register as an E−Filer (aaa, Court Staff) (Filed on 3/25/2009) (Entered: 03/26/2009)

Case: 3:07-cv-2050 As of: 11/06/2016 09:14 PM PST 11 of 32

03/25/2009
03/26/2009
03/26/2009 03/30/2009 04/01/2009 04/16/2009 04/21/2009
04/21/2009
04/23/2009 04/29/2009
05/26/2009 06/11/2009 06/25/2009 06/25/2009 06/25/2009 06/26/2009 07/02/2009

100 EXHIBITS TO THE DECLARATION OF SCOTT EDWARD COLE, ESQ., IN SUPPORT OF PLAINTIFFS' AMENDED ADMINISTRATIVE MOTION TO FILE UNDER SEAL MATERIALS IN CONNECTION WITH PLAINTIFFS' AMENDED MOTION FOR CLASS CERTIFICATION filed byRobert Runnings, Miguel A. Cruz, John D. Hansen. Re 99 Order. FILED UNDER SEAL (aaa, Court Staff) (Filed on 3/25/2009) (Entered: 03/30/2009)
97 Declaration of David E. Hensley In Support of Defendant's Sealing Request Pursuant to Civil Local Rule 79−5 Re Information Concerning The Class Certification Motion filed byDollar Tree Stores, Inc.. (McClain, Maureen) (Filed on 3/26/2009) (Entered: 03/26/2009)
98 Proposed Order Permitting Confidential Documents Submitted Re Plaintiffs' Motion for Class Certification To Be Filed Under Seal (Civil Local Rule 79−5) by Dollar Tree Stores, Inc.. (McClain, Maureen) (Filed on 3/26/2009) (Entered: 03/26/2009)
99 ORDER permitting documents to be filed under seal (sclc2, COURT STAFF) (Filed on 3/30/2009) (Entered: 03/30/2009)
101 ORDER denying request for amended administrative motion to be filed under seal (sclc2, COURT STAFF) (Filed on 4/1/2009) (Entered: 04/01/2009)
102 ORDER by Judge Samuel Conti granting (156) Motion to Seal in case 3:07−cv−04012−SC (sclc2, COURT STAFF) (Filed on 4/16/2009) (Entered: 04/16/2009)
103 MOTION for Leave to File and/or Provide Full Case Citations and Proposed Order filed by Dollar Tree Stores, Inc.. Motion Hearing set for 5/1/2009 10:00 AM in Courtroom 1, 17th Floor, San Francisco. (Gannon, AnnaMary) (Filed on 4/21/2009) (Entered: 04/21/2009)
104 Declaration of AnnaMary Gannon in Support of 103 MOTION for Leave to File and/or Provide Full Case Citations and Proposed Order filed byDollar Tree Stores, Inc.. (Related document(s) 103 ) (Gannon, AnnaMary) (Filed on 4/21/2009) (Entered: 04/21/2009)
105 ORDER by Judge Samuel Conti Denying (103) Motion for Leave to Provide Full Case Citations (tdm, COURT STAFF) (Filed on 4/23/2009) (Entered: 04/23/2009)
106 CLERKS NOTICE taking the case management conference set for May 1, 2009 off calendar. (tdm, COURT STAFF) (Filed on 4/29/2009) (Additional attachment(s) added on 4/29/2009: # 1 Corrected Clerks Notice) (tdm, COURT STAFF). (Entered: 04/29/2009)
107 ORDER by Judge Samuel Conti in case 3:07−cv−02050−SC; granting (124) Motion to Certify Class in case 3:07−cv−04012−SC (sclc2, COURT STAFF) (Filed on 5/26/2009) (Entered: 05/26/2009)
108 STIPULATION AND ORDER Extending Time for Submission of Notice to the Class to 6/25/09. Signed by Judge Samuel Conti on 6/11/09. (tdm, COURT STAFF) (Filed on 6/11/2009) (Entered: 06/11/2009)
109 Brief MEMORANDUM IN SUPPORT OF DEFENDANT DOLLAR TREE STORES, INC.'S FORM OF CLASS NOTICE filed byDollar Tree Stores, Inc.. (Johnson, Krista) (Filed on 6/25/2009) (Entered: 06/25/2009)
110 Declaration of KRISTA STEVENSON JOHNSON IN SUPPORT OF DEFENDANT'S FORM OF CLASS NOTICE filed byDollar Tree Stores, Inc.. (Johnson, Krista) (Filed on 6/25/2009) (Entered: 06/25/2009)
111 Proposed Order RE: CLASS NOTICE by Dollar Tree Stores, Inc.. (Johnson, Krista) (Filed on 6/25/2009) (Entered: 06/25/2009)
112 Letter from KRISTA STEVENSON JOHNSON. (Johnson, Krista) (Filed on 6/26/2009) (Entered: 06/26/2009)
113 ORDER re: Notice to the Class (sclc2, COURT STAFF) (Filed on 7/2/2009) (Entered: 07/02/2009)

Case: 3:07-cv-2050 As of: 11/06/2016 09:14 PM PST 12 of 32

10/01/2009 10/13/2009 10/13/2009 10/13/2009 10/13/2009
10/13/2009
10/13/2009

114 Letter from Matthew P. Vandall to Magistrate Judge Joseph Spero. (Attachments: # 1 Exhibit A−D, # 2 Exhibit E−F, # 3 Exhibit G−H, # 4 Exhibit I−M)(Vandall, Matthew) (Filed on 10/1/2009) (Entered: 10/01/2009)
115 Ex Parte Application DEFENDANT DOLLAR TREE STORES, INC.'S EX PARTE MOTION FOR AN ORDER SHORTENING TIME TO HEAR DEFENDANT'S MOTION FOR EXTENSION OF OPT OUT DEADLINE AND ADDITIONAL NOTICE TO CLASS MEMBERS filed by Dollar Tree Stores, Inc.. (Johnson, Krista) (Filed on 10/13/2009) (Entered: 10/13/2009)
116 Proposed Order re 115 Ex Parte Application DEFENDANT DOLLAR TREE STORES, INC.'S EX PARTE MOTION FOR AN ORDER SHORTENING TIME TO HEAR DEFENDANT'S MOTION FOR EXTENSION OF OPT OUT DEADLINE AND ADDITIONAL NOTICE TO CLASS MEMBERS by Dollar Tree Stores, Inc.. (Johnson, Krista) (Filed on 10/13/2009) (Entered: 10/13/2009)
117 MOTION EXTENSION OF OPT OUT DEADLINE AND ADDITIONAL NOTICE TO POTENTIAL CLASS MEMBERS re 115 Ex Parte Application DEFENDANT DOLLAR TREE STORES, INC.'S EX PARTE MOTION FOR AN ORDER SHORTENING TIME TO HEAR DEFENDANT'S MOTION FOR EXTENSION OF OPT OUT DEADLINE AND ADDITIONAL NOTICE TO CLASS MEMBERS DOLLAR TREE STORES, INC.'S NOTICE OF MOTION AND MOTION FOR EXTENSION OF OPT OUT DEADLINE AND ADDITIONAL NOTICE TO POTENTIAL CLASS MEMBERS filed by Dollar Tree Stores, Inc.. (Johnson, Krista) (Filed on 10/13/2009) (Entered: 10/13/2009)
118 Declaration of MATTHEW P. VANDALL in Support of 117 MOTION EXTENSION OF OPT OUT DEADLINE AND ADDITIONAL NOTICE TO POTENTIAL CLASS MEMBERS re 115 Ex Parte Application DEFENDANT DOLLAR TREE STORES, INC.'S EX PARTE MOTION FOR AN ORDER SHORTENING TIME TO HEAR DEFENDANT'S MOTION FOR EXTENSION MOTION EXTENSION OF OPT OUT DEADLINE AND ADDITIONAL NOTICE TO POTENTIAL CLASS MEMBERS re 115 Ex Parte Application DEFENDANT DOLLAR TREE STORES, INC.'S EX PARTE MOTION FOR AN ORDER SHORTENING TIME TO HEAR DEFENDANT'S MOTION FOR EXTENSION MOTION EXTENSION OF OPT OUT DEADLINE AND ADDITIONAL NOTICE TO POTENTIAL CLASS MEMBERS re 115 Ex Parte Application DEFENDANT DOLLAR TREE STORES, INC.'S EX PARTE MOTION FOR AN ORDER SHORTENING TIME TO HEAR DEFENDANT'S MOTION FOR EXTENSION INCLUDING EXHIBITS A−E filed byDollar Tree Stores, Inc.. (Related document(s) 117 ) (Johnson, Krista) (Filed on 10/13/2009) (Entered: 10/13/2009)
119 Declaration of KRISTA STEVENSON JOHNSON in Support of 117 MOTION EXTENSION OF OPT OUT DEADLINE AND ADDITIONAL NOTICE TO POTENTIAL CLASS MEMBERS re 115 Ex Parte Application DEFENDANT DOLLAR TREE STORES, INC.'S EX PARTE MOTION FOR AN ORDER SHORTENING TIME TO HEAR DEFENDANT'S MOTION FOR EXTENSION MOTION EXTENSION OF OPT OUT DEADLINE AND ADDITIONAL NOTICE TO POTENTIAL CLASS MEMBERS re 115 Ex Parte Application DEFENDANT DOLLAR TREE STORES, INC.'S EX PARTE MOTION FOR AN ORDER SHORTENING TIME TO HEAR DEFENDANT'S MOTION FOR EXTENSION MOTION EXTENSION OF OPT OUT DEADLINE AND ADDITIONAL NOTICE TO POTENTIAL CLASS MEMBERS re 115 Ex Parte Application DEFENDANT DOLLAR TREE STORES, INC.'S EX PARTE MOTION FOR AN ORDER SHORTENING TIME TO HEAR DEFENDANT'S MOTION FOR EXTENSION INCLUDING EXHIBITS A−K filed byDollar Tree Stores, Inc.. (Attachments: # 1 Exhibit A−D, # 2 Exhibit E−K)(Related document(s) 117 ) (Johnson, Krista) (Filed on 10/13/2009) (Entered: 10/13/2009)
120 Proposed Order re 117 MOTION EXTENSION OF OPT OUT DEADLINE AND ADDITIONAL NOTICE TO POTENTIAL CLASS MEMBERS re 115 Ex Parte Application DEFENDANT DOLLAR TREE STORES, INC.'S EX PARTE MOTION FOR AN ORDER SHORTENING TIME TO HEAR DEFENDANT'S MOTION FOR EXTENSION MOTION EXTENSION OF OPT OUT DEADLINE AND ADDITIONAL NOTICE TO POTENTIAL CLASS MEMBERS re 115 Ex Parte Application DEFENDANT DOLLAR TREE STORES, INC.'S EX PARTE MOTION FOR AN ORDER SHORTENING TIME TO HEAR DEFENDANT'S MOTION FOR EXTENSION MOTION EXTENSION OF OPT OUT DEADLINE AND ADDITIONAL

Case: 3:07-cv-2050 As of: 11/06/2016 09:14 PM PST 13 of 32

10/13/2009 10/13/2009 10/13/2009
10/13/2009 10/15/2009 10/15/2009 10/15/2009 10/15/2009 10/16/2009 10/19/2009 10/23/2009 10/23/2009 10/30/2009 10/30/2009

NOTICE TO POTENTIAL CLASS MEMBERS re 115 Ex Parte Application DEFENDANT DOLLAR TREE STORES, INC.'S EX PARTE MOTION FOR AN ORDER SHORTENING TIME TO HEAR DEFENDANT'S MOTION FOR EXTENSION by Dollar Tree Stores, Inc.. (Johnson, Krista) (Filed on 10/13/2009) (Entered: 10/13/2009)
121 CLERKS NOTICE Setting Telephonic Discovery Hearing re: Jt Discovery Letter [docket 183 in C07−4012] for 10/19/2009 at 09:00 AM in Courtroom A, 15th Floor, San Francisco. Court to initiate the phone contact. (klh, COURT STAFF) (Filed on 10/13/2009) (Entered: 10/13/2009)
122 Memorandum in Opposition to Defendant's 115 Ex−Parte Motion For An Order Shortening Time To Hear Defendant's Motion For Extension of Opt Out Deadline And Additional Notice To Class Members filed byRobert Runnings. (Kuehn, Molly) (Filed on 10/13/2009) Modified on 10/14/2009 (aaa, COURT STAFF). (Entered: 10/13/2009)
123 *** FILED IN ERROR. REFER TO DOCUMENT 125 . *** DECLARATION of Molly A. Kuehn in Opposition to 122 Memorandum in Opposition, To Defendant's Ex−Parte Motion For An Order Shortening Time To Hear Defendant's Motion For Extension Of Opt Out Deadline And Additional Notice to Class Members filed byRobert Runnings. (Related document(s) 122 ) (Kuehn, Molly) (Filed on 10/13/2009) Modified on 10/15/2009 (feriab, COURT STAFF). (Entered: 10/13/2009)
124 Proposed Order re 122 Memorandum in Opposition, Denying Defendant's Ex−Parte Motion For An Order Shortening Time To Hear Defendant's Motion For Extension Of Opt Out Deadline And Additional Notice To Class Members by Robert Runnings. (Kuehn, Molly) (Filed on 10/13/2009) (Entered: 10/13/2009)
125 DECLARATION of Molly A. Kuehn in Opposition to 123 Declaration in Opposition, CORRECTION OF DOCKET # 123 . filed byRobert Runnings. (Related document(s) 123 ) (Kuehn, Molly) (Filed on 10/15/2009) (Entered: 10/15/2009)
126 Memorandum in Opposition re 117 Motion filed byMiguel A. Cruz, John D. Hansen, Robert Runnings. (Kuehn, Molly) (Filed on 10/15/2009) Modified on 10/16/2009 (aaa, COURT STAFF). (Entered: 10/15/2009)
127 DECLARATION of Molly A. Kuehn, Esq. in Opposition to 126 Memorandum in Opposition filed byMiguel A. Cruz, John D. Hansen, Robert Runnings. (Related document(s) 126 ) (Kuehn, Molly) (Filed on 10/15/2009) (Entered: 10/15/2009)
128 Proposed Order re 126 Memorandum in Opposition, 127 Declaration in Opposition by Miguel A. Cruz, John D. Hansen, Robert Runnings. (Kuehn, Molly) (Filed on 10/15/2009) (Entered: 10/15/2009)
129 ORDER by Judge Samuel Conti denying (115) Ex Parte Application ; denying in part (117) Motion in case 3:07−cv−02050−SC; denying (184) Ex Parte Application ; denying in part (186) Motion in case 3:07−cv−04012−SC (sclc1, COURT STAFF) (Filed on 10/16/2009) (Entered: 10/16/2009)
130 Minute Entry: Discovery Hearing re docket number 183 held on 10/19/2009 before Magistrate Judge Joseph C. Spero (Date Filed: 10/19/2009). (Court Reporter Sahar McVickar: 9:08−9:30) (ls, COURT STAFF) (Date Filed: 10/19/2009) (Entered: 10/19/2009)
131 Brief filed byMiguel A. Cruz, John D. Hansen, Robert Runnings. (Attachments: # 1 Proposed Order)(Kuehn, Molly) (Filed on 10/23/2009) (Entered: 10/23/2009)
132 Declaration in Support of 131 Brief filed byMiguel A. Cruz, John D. Hansen, Robert Runnings. (Related document(s) 131 ) (Kuehn, Molly) (Filed on 10/23/2009) (Entered: 10/23/2009)
133 Brief Supplemental Briefing Regarding Plaintiffs' Counsel's Misleading Communications With Potential Class Members filed byDollar Tree Stores, Inc.. (Johnson, Krista) (Filed on 10/30/2009) (Entered: 10/30/2009)
134 Declaration of Matthew P. Vandall in Support of Defendant's 134 Supplemental Briefing Regarding Plaintiffs' Counsel's Misleading Communications with Class

Case: 3:07-cv-2050 As of: 11/06/2016 09:14 PM PST 14 of 32

11/10/2009 01/22/2010 02/09/2010 02/09/2010 02/09/2010 02/09/2010 02/10/2010 02/25/2010 03/05/2010 03/05/2010 03/11/2010
03/11/2010
03/15/2010 03/15/2010

Members filed byDollar Tree Stores, Inc.. (Johnson, Krista) (Filed on 10/30/2009) Modified on 11/2/2009 (aaa, COURT STAFF). (Entered: 10/30/2009)
135 ORDER re: attorney communication. Signed by Judge Samuel Conti on 11/10/2009. (sclc1, COURT STAFF) (Filed on 11/10/2009) (Entered: 11/10/2009)
136 Minute Entry: Telephonic Motion Hearing held on 1/22/2010 before Joseph C. Spero re: Docket no. 197 − Dft's Motion to Compel Pla's to Respond to 2nd Set of RFA's and Discovery Sanctions. Motion granted in part, denied in part. (Court Reporter Sahar McVickar.) (klh, COURT STAFF) (Date Filed: 1/22/2010) (Entered: 01/22/2010)
137 CLERKS NOTICE Case Management Conference set for 3/5/2010 10:00 AM in Courtroom 1, 17th Floor, San Francisco. (tdm, COURT STAFF) (Filed on 2/9/2010) (Entered: 02/09/2010)
138 MOTION Motion for Interim Case Management Order and To Stay Discovery filed by Miguel A. Cruz. Motion Hearing set for 4/30/2010 10:00 AM in Courtroom 1, 17th Floor, San Francisco. (Kuehn, Molly) (Filed on 2/9/2010) (Entered: 02/09/2010)
139 Declaration of Molly A. Kuehn in Support of 138 MOTION Motion for Interim Case Management Order and To Stay Discovery filed byMiguel A. Cruz. (Related document(s) 138 ) (Kuehn, Molly) (Filed on 2/9/2010) (Entered: 02/09/2010)
140 Proposed Order re 138 MOTION Motion for Interim Case Management Order and To Stay Discovery by Miguel A. Cruz. (Kuehn, Molly) (Filed on 2/9/2010) (Entered: 02/09/2010)
141 ORDER by Judge Samuel Conti denying 138 Motion for Case Management Order and Discovery Stay (sclc2, COURT STAFF) (Filed on 2/10/2010) (Entered: 02/10/2010)
142 JOINT CASE MANAGEMENT STATEMENT (SUPPLEMENTAL) filed by Dollar Tree Stores, Inc.. (Vandall, Matthew) (Filed on 2/25/2010) (Entered: 02/25/2010)
143 Minute Entry: Status Conference (Date Filed: 3/5/2010). Further Status Conference set for 3/19/2010 10:00 AM in Courtroom 1, 17th Floor, San Francisco. (Court Reporter Catherine Edwards.) (tdm, COURT STAFF) (Date Filed: 3/5/2010) (Entered: 03/05/2010)
***Deadlines terminated. (ys, COURT STAFF) (Filed on 3/5/2010) (Entered: 03/08/2010)
144 Transcript of Proceedings held on 10/19/09, before Judge Joseph C. Spero. Court Reporter/Transcriber Sahar McVickar, CSR, RPR, Telephone number (415) 626−6060/sahar_mcvickar@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 6/9/2010. (McVickar, Sahar) (Filed on 3/11/2010) (Entered: 03/11/2010)
145 Transcript of Proceedings held on 1/22/10, before Judge Joseph C. Spero. Court Reporter/Transcriber Sahar McVickar, CSR, RPR, Telephone number Y. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 6/9/2010. (McVickar, Sahar) (Filed on 3/11/2010) (Entered: 03/11/2010)
146 Declaration of MATTHEW P. VANDALL in Support of Defendant's Proposed Order (Exhibits A through H) filed byDollar Tree Stores, Inc.. (Johnson, Krista) (Filed on 3/15/2010) (Entered: 03/15/2010)
147 Proposed Order After Case Management Conference by Dollar Tree Stores, Inc.. (Johnson, Krista) (Filed on 3/15/2010) (Entered: 03/15/2010)

Case: 3:07-cv-2050 As of: 11/06/2016 09:14 PM PST 15 of 32

03/17/2010 03/22/2010 03/25/2010 04/02/2010 04/02/2010 04/02/2010 04/02/2010 04/06/2010 04/08/2010 04/08/2010
04/08/2010
04/08/2010 04/08/2010 04/08/2010 04/08/2010

148 ORDER Requiring JOINT Proposed Order; Vacating Hearing (sclc2, COURT STAFF) (Filed on 3/17/2010) (Entered: 03/17/2010)
149 Proposed Order After Case Management Conference by Dollar Tree Stores, Inc.. (Vandall, Matthew) (Filed on 3/22/2010) (Entered: 03/22/2010)
150 ORDER after Case Management Conference (sclc2, COURT STAFF) (Filed on 3/25/2010) (Entered: 03/25/2010)
151 Joint MOTION for Disclosure JOINT ADMINISTRATIVE MOTION FOR SCHEDULING ORDER REGARDING PARTIES' EXPERT DISCLOSURE filed by Miguel A. Cruz, Dollar Tree Stores, Inc.. (Johnson, Krista) (Filed on 4/2/2010) (Entered: 04/02/2010)
152 Declaration of KRISTA STEVENSON JOHNSON IN SUPPORT OF DEFEDANT'S PROPOSED 151 SCHEDULING ORDER REGARDING PARTIES' EXPERT DISCLOSURE filed byDollar Tree Stores, Inc.. (Johnson, Krista) (Filed on 4/2/2010) Modified on 4/6/2010 (aaa, COURT STAFF). (Entered: 04/02/2010)
153 Proposed Order SUBMITTED BY DEFENDANT ON 151 JOINT ADMINISTRATIVE MOTION FOR SCHEDULING ORDER REGARDING PARTIES' EXPERT DISCLOSURE by Dollar Tree Stores, Inc.. (Johnson, Krista) (Filed on 4/2/2010) Modified on 4/6/2010 (aaa, COURT STAFF). (Entered: 04/02/2010)
154 Proposed Order re 152 Declaration in Support, 151 Joint MOTION for Disclosure JOINT ADMINISTRATIVE MOTION FOR SCHEDULING ORDER REGARDING PARTIES' EXPERT DISCLOSURE by Miguel A. Cruz, John D. Hansen, Robert Runnings. (Kuehn, Molly) (Filed on 4/2/2010) (Entered: 04/02/2010)
155 ORDER by Judge Samuel Conti Re: (151) Motion for Disclosure in case 3:07−cv−02050−SC; Re: (209) Motion for Disclosure in case 3:07−cv−04012−SC (sclc2, COURT STAFF) (Filed on 4/6/2010) (Entered: 04/06/2010)
156 Ex Parte Application for An Order Shortening Time to Hear Defendant Dollar Tree Stores, Inc.'s Motion to Curb Deposition Discovery Abuses; Memorandum of Points and Authorities filed by Dollar Tree Stores, Inc.. (Johnson, Krista) (Filed on 4/8/2010) (Entered: 04/08/2010)
157 Declaration of Matthew P. Vandall in Support of 156 Ex Parte Application for An Order Shortening Time to Hear Defendant Dollar Tree Stores, Inc.'s Motion to Curb Deposition Discovery Abuses; Memorandum of Points and Authorities filed byDollar Tree Stores, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B − Part 1 of 3, # 3 Exhibit B − Part 2 of 3, # 4 Exhibit B − Part 3 of 3, # 5 Exhibit C)(Related document(s) 156 ) (Johnson, Krista) (Filed on 4/8/2010) (Entered: 04/08/2010)
158 Declaration of Krista Stevenson Johnson in Support of 156 Ex Parte Application for An Order Shortening Time to Hear Defendant Dollar Tree Stores, Inc.'s Motion to Curb Deposition Discovery Abuses; Memorandum of Points and Authorities filed byDollar Tree Stores, Inc.. (Attachments: # 1 Exhibit D−F, # 2 Exhibit G−H, # 3 Exhibit I−Q)(Related document(s) 156 ) (Johnson, Krista) (Filed on 4/8/2010) (Entered: 04/08/2010)
159 Proposed Order re 156 Ex Parte Application for An Order Shortening Time to Hear Defendant Dollar Tree Stores, Inc.'s Motion to Curb Deposition Discovery Abuses; Memorandum of Points and Authorities by Dollar Tree Stores, Inc.. (Johnson, Krista) (Filed on 4/8/2010) (Entered: 04/08/2010)
160 Letter Brief Re: Discovery Issues filed byDollar Tree Stores, Inc.. (Johnson, Krista) (Filed on 4/8/2010) (Entered: 04/08/2010)
161 Proposed Order re 160 Letter Brief Proposed Order Granting Defendant's Request to Curb Deposition Discovery Abuses By Plaintiffs by Dollar Tree Stores, Inc.. (Johnson, Krista) (Filed on 4/8/2010) (Entered: 04/08/2010)
162 MOTION Defendant Dollar Tree Stores, Inc.'s Motion for Administrative Relief to File Under Seal filed by Dollar Tree Stores, Inc.. (Johnson, Krista) (Filed on 4/8/2010) (Entered: 04/08/2010)

Case: 3:07-cv-2050 As of: 11/06/2016 09:14 PM PST 16 of 32

04/08/2010 04/08/2010 04/09/2010 04/12/2010 04/12/2010 04/12/2010 04/14/2010
04/19/2010 04/19/2010
04/22/2010 04/28/2010 04/30/2010 05/11/2010

163 Declaration of Krista Stevenson Johnson in Support of 162 MOTION Defendant Dollar Tree Stores, Inc.'s Motion for Administrative Relief to File Under Seal filed byDollar Tree Stores, Inc.. (Related document(s) 162 ) (Johnson, Krista) (Filed on 4/8/2010) (Entered: 04/08/2010)
164 Proposed Order re 162 MOTION Defendant Dollar Tree Stores, Inc.'s Motion for Administrative Relief to File Under Seal by Dollar Tree Stores, Inc.. (Johnson, Krista) (Filed on 4/8/2010) (Entered: 04/08/2010)
166 DECLARATION OF KRISTA STEVENSON JOHNSON IN SUPPORT OF DEFENDANT'S SEALING REQUEST PURSUANT TO CIVIL LOCAL RULE 79−5 filed byDollar Tree Stores, Inc. Re 165 Order. FILED UNDER SEAL (aaa, COURT STAFF) (Filed on 4/9/2010) (Entered: 04/12/2010)
165 ORDER, by Judge Joseph C. Spero, signed 4/9/10,granting (162) Dft's Admin. Motion File Under Seal in case 3:07−cv−02050−SC, and 219 Dft's Admin. Motion to File Under Seal in case in 3:07−cv−04012−SC (klh, COURT STAFF) (Filed on 4/12/2010) (Entered: 04/12/2010)
167 ORDER, by Judge Joseph C. Spero, signed 4/12/10,granting 156 Ex Parte Application For an Order Shortening Time. (klh, COURT STAFF) (Filed on 4/12/2010) (Entered: 04/12/2010)
168 CLERKS NOTICE setting Dft's Letter to Order Class Counsel to Curb its Discovery Abuses has been set for 4/16/2010 at 09:30 AM before Magistrate Judge Joseph C. Spero, in Courtroom A, 15th Floor, San Francisco. (klh, COURT STAFF) (Filed on 4/12/2010) (Entered: 04/12/2010)
169 ERRATA TO 163 DECLARATIONS OF KRISTA STEVENSON JOHNSON AND 157 MATTHEW P. VANDALL IN SUPPORT OF DEFENDANT DOLLAR TREE STORES, INC.'S BRIEFING RE: DEPOSITION ABUSES AND IN SUPPORT OF BRIEFING by Dollar Tree Stores, Inc.. (Attachments: # 1 Exhibit, # 2 Exhibit)(Johnson, Krista) (Filed on 4/14/2010) Modified on 4/15/2010 (aaa, COURT STAFF). (Entered: 04/14/2010)
170 Minute Entry: Discovery Motion Hearing held on 4/16/2010 before Joseph C. Spero re:Docket No. 160 − Dft's Motion to Curb Discovery Abuses. Motion granted in part, denied in part. Discovery Hearing set for 4/23/2010 at 09:30 AM in Courtroom A, 15th Floor, San Francisco. (Court Reporter Debra Pas.) (klh, COURT STAFF) (Date Filed: 4/19/2010) (Entered: 04/19/2010)
171 Transcript of Proceedings held on 4/16/2010, before Judge Joseph C. Spero. Court Reporter/Transcriber Debra L. Pas, CRR, Telephone number (415) 431−1477. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 7/19/2010. (Pas, Debra) (Filed on 4/19/2010) (Entered: 04/19/2010)
172 ORDER GRANTING UNOPPOSED REQUEST TO CONTINUE HEARING ON DISCOVERY CONFERENCE RE; MOLLY KUEHN RE: MESSER DEPOSITION NOTE. Discovery Hearing re−set for 4/30/2010 at 09:30 AM in Courtroom A, 15th Floor, San Francisco. Signed by Judge Joseph C. Spero on 4/21/2010. (klh, COURT STAFF) (Filed on 4/22/2010) (Entered: 04/22/2010)
173 CLERKS NOTICE Discovery Hearing re: Joint Letter re: Scheduled Depositions set for 4/30/2010 at 09:30 AM in Courtroom A, 15th Floor, San Francisco. (klh, COURT STAFF) (Filed on 4/28/2010) (Entered: 04/28/2010)
174 Minute Entry: Discovery Hearing held on 4/30/2010 before Joseph C. Spero re: Messer Depo Note and Joint Letter re: Deposition Schedule [docket no. 233 in C07−4012) (Court Reporter Joan Columbini.) (klh, COURT STAFF) (Date Filed: 4/30/2010) (Entered: 04/30/2010)
175 Letter from Molly A. Kuehn regarding March 25, 2010 Order After Case Management Conference. (Kuehn, Molly) (Filed on 5/11/2010) (Entered: 05/11/2010)

Case: 3:07-cv-2050 As of: 11/06/2016 09:14 PM PST 17 of 32

05/11/2010 05/12/2010
05/28/2010 06/07/2010 06/07/2010
06/07/2010 06/08/2010 06/09/2010 06/09/2010 06/09/2010 06/11/2010 06/11/2010

176 Letter from Krista S. Johnson to Honorable Samuel Conti on behalf of Dollar Tree Stores, Inc.. (Attachments: # 1 Exhibit A)(Johnson, Krista) (Filed on 5/11/2010) (Entered: 05/11/2010)
177 Transcript of Proceedings held on April 30, 2010, before Judge Samuel Conti. Court Reporter/Transcriber Joan Marie Columbini, Telephone number 415−255−6842, Joan_Columbini@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 8/10/2010. (Columbini, Joan) (Filed on 5/12/2010) (Entered: 05/12/2010)
178 Letter from COUNSEL − JOINT LETTER.. (Attachments: # 1 Exhibit A−D, # 2 Exhibit E−H, # 3 Exhibit I, # 4 Exhibit J−K)(Vandall, Matthew) (Filed on 5/28/2010) (Entered: 05/28/2010)
179 MOTION for Leave to File Excess Pages ADMINISTRATIVE MOTION AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ADMINISTRATIVE MOTION FOR RELIEF TO FILE ITS MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION TO DECERTIFY THE CLASS IN EXCESS OF 25 PAGES filed by Dollar Tree Stores, Inc.. (Johnson, Krista) (Filed on 6/7/2010) (Entered: 06/07/2010)
180 Declaration of KRISTA STEVENSON JOHNSON in Support of 179 MOTION for Leave to File Excess Pages ADMINISTRATIVE MOTION AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ADMINISTRATIVE MOTION FOR RELIEF TO FILE ITS MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION TO DECERTIFY THE CLASS IN filed byDollar Tree Stores, Inc.. (Related document(s) 179 ) (Johnson, Krista) (Filed on 6/7/2010) (Entered: 06/07/2010)
181 Proposed Order re 179 MOTION for Leave to File Excess Pages ADMINISTRATIVE MOTION AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ADMINISTRATIVE MOTION FOR RELIEF TO FILE ITS MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION TO DECERTIFY THE CLASS IN by Dollar Tree Stores, Inc.. (Johnson, Krista) (Filed on 6/7/2010) (Entered: 06/07/2010)
182 CLERKS NOTICE. Telephonic Discovery Hearing set for 6/9/2010 at 09:00 AM in Courtroom A, 15th Floor, San Francisco. re: Docket No. 238 (klh, COURT STAFF) (Filed on 6/8/2010) (Entered: 06/08/2010)
183 Minute Entry: Telephonic Discovery Hearing held on 6/9/2010 before Joseph C. Spero re: Joit Letter Compelling Class Discovery Requests [Docket Nos. 238 in C07−4012 and 178 in C07−2050]. Court to prepare Order. (Court Reporter Kathy Wyatt.) (klh, COURT STAFF) (Date Filed: 6/9/2010) (Entered: 06/09/2010)
***Deadlines terminated. Discovery hearing held on 6/9/10 re: 178 Letter filed by Dollar Tree Stores, Inc.. (klh, COURT STAFF) (Filed on 6/9/2010) (Entered: 06/09/2010)
184 ORDER GRANTING IN PART, DENYING IN PART MOTION TO COMPEL (JOINT LETTER BRIEF) re (178 in 3:07−cv−02050−SC) Letter filed by Dollar Tree Stores, Inc., and (238 in 3:07−cv−04012−SC) Letter filed by Dollar Tree Stores, Inc. Signed by Judge Joseph C. Spero on 06/09/10. (klh, COURT STAFF) (Filed on 6/9/2010) (Entered: 06/09/2010)
185 Memorandum in Opposition to Defendant's Administrative 179 Motion for Relief to File Its Memorandum of Points and Authorities in Support of Its Motion to Decertify the Class in Excess of 25 Pages filed byMiguel A. Cruz, John D. Hansen, Robert Runnings. (Cole, Scott) (Filed on 6/11/2010) Modified on 6/14/2010 (aaa, COURT STAFF). (Entered: 06/11/2010)
186 Proposed Order re 185 Memorandum in Opposition, Denying Defendant's Administrative Motion for Relief to File Its Memorandum of Points and Authorities in Support of Its Motion to Decertify the Class in Excess of 25 Pages by Miguel A. Cruz,

Case: 3:07-cv-2050 As of: 11/06/2016 09:14 PM PST 18 of 32

06/14/2010 06/18/2010 06/18/2010
06/18/2010 06/18/2010 06/18/2010
06/18/2010 06/18/2010

John D. Hansen, Robert Runnings. (Cole, Scott) (Filed on 6/11/2010) (Entered: 06/11/2010)
187 ORDER by Judge Samuel Conti granting in part and denying in part (179) Motion for Leave to File Excess Pages in case 3:07−cv−02050−SC; granting in part and denying in part (239) Motion for Leave to File Excess Pages in case 3:07−cv−04012−SC (sclc2, COURT STAFF) (Filed on 6/14/2010) (Entered: 06/14/2010)
188 MOTION MOTION TO DECERTIFY THE CLASS DEFENDANT DOLLAR TREE STORES, INC.'S NOTICE OF MOTION AND MOTION TO DECERTIFY THE CLASS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF filed by Dollar Tree Stores, Inc.. Motion Hearing set for 7/23/2010 10:00 AM in Courtroom 1, 17th Floor, San Francisco. (McClain, Maureen) (Filed on 6/18/2010) (Entered: 06/18/2010)
189 Declaration of MATTHEW P. VANDALL in Support of 188 MOTION MOTION TO DECERTIFY THE CLASS DEFENDANT DOLLAR TREE STORES, INC.'S NOTICE OF MOTION AND MOTION TO DECERTIFY THE CLASS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF DECLARATION OF MATTHEW P. VANDALL IN SUPPORT OF DEFENDANT DOLLAR TREE STORES, INC.'S MOTION TO DECERTIFY THE CLASS filed byDollar Tree Stores, Inc.. (Attachments: # 1 Exhibit A−B, # 2 Exhibit C−E, # 3 Exhibit F, # 4 Exhibit G, # 5 Exhibit H−J, # 6 Exhibit K−M, # 7 Exhibit N−S, # 8 Exhibit T−V, # 9 Exhibit W, # 10 Exhibit X−Z, # 11 Exhibit AA−GG, # 12 Exhibit HH−JJ)(Related document(s) 188 ) (McClain, Maureen) (Filed on 6/18/2010) (Entered: 06/18/2010)
190 Declaration of ROBERT CRANDALL, MBA in Support of 188 MOTION MOTION TO DECERTIFY THE CLASS DEFENDANT DOLLAR TREE STORES, INC.'S NOTICE OF MOTION AND MOTION TO DECERTIFY THE CLASS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF filed byDollar Tree Stores, Inc.. (Related document(s) 188 ) (McClain, Maureen) (Filed on 6/18/2010) (Entered: 06/18/2010)
191 Declaration of ROBERT CRANDALL, MBA in Support of 188 MOTION MOTION TO DECERTIFY THE CLASS DEFENDANT DOLLAR TREE STORES, INC.'S NOTICE OF MOTION AND MOTION TO DECERTIFY THE CLASS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF REBUTTAL DECLARATION OF ROBERT CRANDALL, MBA filed byDollar Tree Stores, Inc.. (Related document(s) 188 ) (McClain, Maureen) (Filed on 6/18/2010) (Entered: 06/18/2010)
192 Declaration of KRISTA STEVENSON JOHNSON in Support of 188 MOTION MOTION TO DECERTIFY THE CLASS DEFENDANT DOLLAR TREE STORES, INC.'S NOTICE OF MOTION AND MOTION TO DECERTIFY THE CLASS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF DECLARATION OF KRISTA STEVENSON JOHNSON IN SUPPORT OF DOLLAR TREE STORES, INC.'S MOTION TO DECERTIFY THE CLASS filed byDollar Tree Stores, Inc.. (Attachments: # 1 Exhibit 1−3, # 2 Exhibit 4−5, # 3 Exhibit 6, # 4 Exhibit 7−9, # 5 Exhibit 10−14, # 6 Exhibit 15−17, # 7 Exhibit 18−20, # 8 Exhibit 21−25, # 9 Exhibit 26−29, # 10 Exhibit 30−32, # 11 Exhibit 33−35, # 12 Exhibit 36−38, # 13 Exhibit 39−43, # 14 Exhibit 44−45, # 15 Exhibit 46−48, # 16 Exhibit 49−51, # 17 Exhibit 52−54, # 18 Exhibit 55−56, # 19 Exhibit 57−60)(Related document(s) 188 ) (McClain, Maureen) (Filed on 6/18/2010) (Entered: 06/18/2010)
193 Declaration of JERRY CLEMENS in Support of 188 MOTION MOTION TO DECERTIFY THE CLASS DEFENDANT DOLLAR TREE STORES, INC.'S NOTICE OF MOTION AND MOTION TO DECERTIFY THE CLASS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF DECLARATION OF JERRY CLEMENS IN SUPPORT OF DEFENDANT'S MOTION TO DECERTIFY THE CLASS filed byDollar Tree Stores, Inc.. (Related document(s) 188 ) (McClain, Maureen) (Filed on 6/18/2010) (Entered: 06/18/2010)
194 Declaration of PAM WOLPA in Support of 188 MOTION MOTION TO DECERTIFY THE CLASS DEFENDANT DOLLAR TREE STORES, INC.'S NOTICE OF MOTION AND MOTION TO DECERTIFY THE CLASS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF DECLARATION OF PAM WOLPA IN SUPPORT OF DOLLAR TREE STORES, INC.'S MOTION TO

Case: 3:07-cv-2050 As of: 11/06/2016 09:14 PM PST 19 of 32

06/18/2010 06/18/2010 06/18/2010 06/18/2010 06/18/2010 06/23/2010 06/29/2010
07/02/2010

DECERTIFY THE CLASS filed byDollar Tree Stores, Inc.. (Attachments: # 1 Exhibit A−D, # 2 Exhibit E−G)(Related document(s) 188 ) (McClain, Maureen) (Filed on 6/18/2010) (Entered: 06/18/2010)
195 Declaration of CHARLENE MONTGOMERY in Support of 188 MOTION MOTION TO DECERTIFY THE CLASS DEFENDANT DOLLAR TREE STORES, INC.'S NOTICE OF MOTION AND MOTION TO DECERTIFY THE CLASS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF DECLARATION OF CHARLENE MONTGOMERY IN SUPPORT OF DEFENDANT'S MOTION TO DECERTIFY THE CLASS filed byDollar Tree Stores, Inc.. (Related document(s) 188 ) (McClain, Maureen) (Filed on 6/18/2010) (Entered: 06/18/2010)
196 OBJECTIONS to re 188 MOTION MOTION TO DECERTIFY THE CLASS DEFENDANT DOLLAR TREE STORES, INC.'S NOTICE OF MOTION AND MOTION TO DECERTIFY THE CLASS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF DEFENDANT'S OBJECTIONS TO THE EXPERT REPORTS OF DAVID LEWIN, PH.D. by Dollar Tree Stores, Inc.. (McClain, Maureen) (Filed on 6/18/2010) (Entered: 06/18/2010)
197 Request for Judicial Notice re 188 MOTION MOTION TO DECERTIFY THE CLASS DEFENDANT DOLLAR TREE STORES, INC.'S NOTICE OF MOTION AND MOTION TO DECERTIFY THE CLASS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF DEFENDANT DOLLAR TREE STORES, INC.'S REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION TO DECERTIFY THE CLASS filed byDollar Tree Stores, Inc.. (Related document(s) 188 ) (McClain, Maureen) (Filed on 6/18/2010) (Entered: 06/18/2010)
198 Proposed Order re 197 Request for Judicial Notice, [PROPOSED] ORDER GRANTING DEFENDANT DOLLAR TREE STORES, INC.'S REQUEST FOR JUDICIAL NOTICE by Dollar Tree Stores, Inc.. (McClain, Maureen) (Filed on 6/18/2010) (Entered: 06/18/2010)
199 Proposed Order re 188 MOTION MOTION TO DECERTIFY THE CLASS DEFENDANT DOLLAR TREE STORES, INC.'S NOTICE OF MOTION AND MOTION TO DECERTIFY THE CLASS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF [PROPOSED] ORDER GRANTING DEFENDANT DOLLAR TREE STORES, INC.'S MOTION TO DECERTIFY THE CLASS by Dollar Tree Stores, Inc.. (McClain, Maureen) (Filed on 6/18/2010) (Entered: 06/18/2010)
200 CERTIFICATE OF SERVICE by Dollar Tree Stores, Inc. re 189 Declaration in Support,, PROOF OF SERVICE RE DOCUMENT TO BE FILED UNDER SEAL PER APRIL 16, 2010, COURT ORDER [Docket No. 159] EXHIBIT "Y" TO DECLARATION OF MATTHEW P. VANDALL IN SUPPORT OF DOLLAR TREE STORES, INC.'S MOTION TO DECERTIFY THE CLASS [EXHIBITS "Y" IS DEC. OF CHARLOTTA JACOBSON−ALLEN−DOCKET NO. 137] (McClain, Maureen) (Filed on 6/23/2010) (Entered: 06/23/2010)
201 Transcript of Proceedings held on 6−9−10, before Judge Joseph Spero. Court Reporter/Transcriber Katherine Wyatt, Telephone number 925−212−5224. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 9/27/2010. (kpw, COURT STAFF) (Filed on 6/29/2010) (Entered: 06/29/2010)
202 Request for Judicial Notice re 188 MOTION MOTION TO DECERTIFY THE CLASS DEFENDANT DOLLAR TREE STORES, INC.'S NOTICE OF MOTION AND MOTION TO DECERTIFY THE CLASS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF IN SUPPORT OF PLAINTIFFS OPPOSITION TO DEFENDANTS MOTION TO DECERTIFY THE CLASS filed byMiguel A. Cruz, John D. Hansen, Robert Runnings. (Attachments: # 1 Exhibit 1 and 2, # 2 Exhibit 3 (A−C), # 3 Exhibit 3 (D−F))(Related document(s) 188 ) (Kuehn, Molly) (Filed on 7/2/2010) (Entered: 07/02/2010)

Case: 3:07-cv-2050 As of: 11/06/2016 09:14 PM PST 20 of 32

07/02/2010 07/02/2010 07/02/2010 07/02/2010 07/02/2010 07/02/2010 07/02/2010
07/02/2010
07/02/2010

203 Proposed Order re 188 MOTION MOTION TO DECERTIFY THE CLASS DEFENDANT DOLLAR TREE STORES, INC.'S NOTICE OF MOTION AND MOTION TO DECERTIFY THE CLASS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF [PROPOSED] ORDER DENYING DEFENDANTS MOTION TO DECERTIFY THE CLASS by Miguel A. Cruz, John D. Hansen, Robert Runnings. (Kuehn, Molly) (Filed on 7/2/2010) (Entered: 07/02/2010)
204 Proposed Order re 203 Proposed Order, 202 Request for Judicial Notice,, by Miguel A. Cruz, John D. Hansen, Robert Runnings. (Cole, Scott) (Filed on 7/2/2010) (Entered: 07/02/2010)
205 Proposed Order re 204 Proposed Order, 203 Proposed Order, 202 Request for Judicial Notice,, SUSTAINING PLAINTIFFS EVIDENTIARY OBJECTIONS by Miguel A. Cruz, John D. Hansen, Robert Runnings. (Cole, Scott) (Filed on 7/2/2010) (Entered: 07/02/2010)
206 Request for Judicial Notice re 188 MOTION MOTION TO DECERTIFY THE CLASS DEFENDANT DOLLAR TREE STORES, INC.'S NOTICE OF MOTION AND MOTION TO DECERTIFY THE CLASS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF IN SUPPORT OF PLAINTIFFS OPPOSITION TO DEFENDANTS MOTION TO DECERTIFY THE CLASS filed byMiguel A. Cruz, John D. Hansen, Robert Runnings. (Attachments: # 1 Exhibit 3 (G Part 1), # 2 Exhibit 3 (G Part 2), # 3 Exhibit 3 (G Part 3), # 4 Exhibit 3 (H−J))(Related document(s) 188 ) (Kuehn, Molly) (Filed on 7/2/2010) (Entered: 07/02/2010)
207 DECLARATION of Scott Edward Cole, Esq. in Opposition to 204 Proposed Order, 205 Proposed Order, 203 Proposed Order, 202 Request for Judicial Notice,, 206 Request for Judicial Notice,, IN SUPPORT OF PLAINTIFFS' OPPOSITION TO DEFENDANT'S MOTION TO DECERTIFY THE CLASS filed byMiguel A. Cruz, John D. Hansen, Robert Runnings. (Related document(s) 204 , 205 , 203 , 202 , 206 ) (Cole, Scott) (Filed on 7/2/2010) (Entered: 07/02/2010)
208 Request for Judicial Notice re 188 MOTION MOTION TO DECERTIFY THE CLASS DEFENDANT DOLLAR TREE STORES, INC.'S NOTICE OF MOTION AND MOTION TO DECERTIFY THE CLASS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF PLAINTIFFS REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF PLAINTIFFS OPPOSITION TO DEFENDANTS MOTION TO DECERTIFY THE CLASS filed byMiguel A. Cruz, John D. Hansen, Robert Runnings. (Attachments: # 1 Exhibit 3 (K))(Related document(s) 188 ) (Kuehn, Molly) (Filed on 7/2/2010) (Entered: 07/02/2010)
209 Request for Judicial Notice re 188 MOTION MOTION TO DECERTIFY THE CLASS DEFENDANT DOLLAR TREE STORES, INC.'S NOTICE OF MOTION AND MOTION TO DECERTIFY THE CLASS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF PLAINTIFFS REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF PLAINTIFFS OPPOSITION TO DEFENDANTS MOTION TO DECERTIFY THE CLASS filed byMiguel A. Cruz, John D. Hansen, Robert Runnings. (Attachments: # 1 Exhibit 3 (L Part 1), # 2 Exhibit 3 (L Part 2), # 3 Exhibit 3 (L Part 3), # 4 Exhibit 3 (M Part 1), # 5 Exhibit 3 (M Part 2))(Related document(s) 188 ) (Kuehn, Molly) (Filed on 7/2/2010) (Entered: 07/02/2010)
210 Request for Judicial Notice re 188 MOTION MOTION TO DECERTIFY THE CLASS DEFENDANT DOLLAR TREE STORES, INC.'S NOTICE OF MOTION AND MOTION TO DECERTIFY THE CLASS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF PLAINTIFFS REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF PLAINTIFFS OPPOSITION TO DEFENDANTS MOTION TO DECERTIFY THE CLASS filed byMiguel A. Cruz, John D. Hansen, Robert Runnings. (Attachments: # 1 Exhibit 3 (N), # 2 Exhibit 3 (O Part 1), # 3 Exhibit 3 (O Part 2), # 4 Exhibit 3 (O Part 3), # 5 Exhibit 3 (O Part 4), # 6 Exhibit 3 (O Part 5))(Related document(s) 188 ) (Kuehn, Molly) (Filed on 7/2/2010) (Entered: 07/02/2010)
211 Request for Judicial Notice re 188 MOTION MOTION TO DECERTIFY THE CLASS DEFENDANT DOLLAR TREE STORES, INC.'S NOTICE OF MOTION AND MOTION TO DECERTIFY THE CLASS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF PLAINTIFFS REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF PLAINTIFFS OPPOSITION TO DEFENDANTS MOTION

Case: 3:07-cv-2050 As of: 11/06/2016 09:14 PM PST 21 of 32

07/02/2010 07/02/2010
07/02/2010
07/02/2010 07/02/2010 07/02/2010 07/09/2010
07/09/2010
07/09/2010 07/09/2010

TO DECERTIFY THE CLASS filed byMiguel A. Cruz, John D. Hansen, Robert Runnings. (Attachments: # 1 Exhibit 4 (Part 1), # 2 Exhibit 4 (Part 2), # 3 Exhibit 5−7)(Related document(s) 188 ) (Kuehn, Molly) (Filed on 7/2/2010) (Entered: 07/02/2010)
212 Memorandum in Opposition TO DEFENDANT'S 188 MOTION TO DECERTIFY THE CLASS filed byMiguel A. Cruz, John D. Hansen, Robert Runnings. (Cole, Scott) (Filed on 7/2/2010) Modified on 7/7/2010 (aaa, COURT STAFF). (Entered: 07/02/2010)
213 OBJECTIONS to re 188 MOTION MOTION TO DECERTIFY THE CLASS DEFENDANT DOLLAR TREE STORES, INC.'S NOTICE OF MOTION AND MOTION TO DECERTIFY THE CLASS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF PLAINTIFFS EVIDENTIARY OBJECTIONS TO THE DECLARATION OF ROBERT CRANDALL; REBUTTAL DECLARATION OF ROBERT CRANDALL; AND THE 2002−2003 SURVEY CONDUCTED BY RESOLUTION ECONOMICS LLC by Miguel A. Cruz, John D. Hansen, Robert Runnings. (Kuehn, Molly) (Filed on 7/2/2010) (Entered: 07/02/2010)
214 DECLARATION of MOLLY A. KUEHN in Opposition to 188 MOTION MOTION TO DECERTIFY THE CLASS DEFENDANT DOLLAR TREE STORES, INC.'S NOTICE OF MOTION AND MOTION TO DECERTIFY THE CLASS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF IN SUPPORT OF PLAINTIFFS OPPOSITION TO DEFENDANT'S MOTION TO DECERTIFY THE CLASS filed byMiguel A. Cruz, John D. Hansen, Robert Runnings. (Attachments: # 1 Exhibit 1−12, # 2 Exhibit 13−22, # 3 Exhibit 23−36)(Related document(s) 188 ) (Kuehn, Molly) (Filed on 7/2/2010) (Entered: 07/02/2010)
215 EXHIBITS re 214 Declaration in Opposition,, filed byMiguel A. Cruz, John D. Hansen, Robert Runnings. (Attachments: # 1 Exhibit 50−59, # 2 Exhibit 60−69, # 3 Exhibit 70−77)(Related document(s) 214 ) (Kuehn, Molly) (Filed on 7/2/2010) (Entered: 07/02/2010)
216 EXHIBITS re 214 Declaration in Opposition,, filed byMiguel A. Cruz, John D. Hansen, Robert Runnings. (Attachments: # 1 Exhibit 80−89, # 2 Exhibit 90−98)(Related document(s) 214 ) (Kuehn, Molly) (Filed on 7/2/2010) (Entered: 07/02/2010)
217 EXHIBITS re 216 Exhibits filed byMiguel A. Cruz, John D. Hansen, Robert Runnings. (Attachments: # 1 Exhibit 107−108)(Related document(s) 216 ) (Kuehn, Molly) (Filed on 7/2/2010) (Entered: 07/02/2010)
218 Reply Memorandum re 188 MOTION MOTION TO DECERTIFY THE CLASS DEFENDANT DOLLAR TREE STORES, INC.'S NOTICE OF MOTION AND MOTION TO DECERTIFY THE CLASS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF DEFENDANT DOLLAR TREE STORES, INC.'S REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DECERTIFY THE CLASS filed byDollar Tree Stores, Inc.. (McClain, Maureen) (Filed on 7/9/2010) (Entered: 07/09/2010)
219 Declaration of MATTHEW P. VANDALL in Support of 218 Reply Memorandum, REPLY DECLARATION OF MATTHEW P. VANDALL IN SUPPORT OF DEFENDANT DOLLAR TREE STORES, INC.'S MOTION TO DECERTIFY THE CLASS filed byDollar Tree Stores, Inc.. (Attachments: # 1 Exhibit 1−2, # 2 Exhibit 3, # 3 Exhibit 4, # 4 Exhibit 5 (A−F), # 5 Exhibit 5 (G−P), # 6 Exhibit 5 (Q−Y), # 7 Exhibit 6)(Related document(s) 218 ) (McClain, Maureen) (Filed on 7/9/2010) (Entered: 07/09/2010)
220 OBJECTIONS to EVIDENTIARY OBJECTIONS IN SUPPORT OF DEFENDANT DOLLAR TREE STORES, INC.'S 188 MOTION TO DECERTIFY THE CLASS by Dollar Tree Stores, Inc.. (McClain, Maureen) (Filed on 7/9/2010) Modified on 7/13/2010 (aaa, COURT STAFF). (Entered: 07/09/2010)
221 Proposed Order [PROPOSED] ORDER SUSTAINING DEFENDANT DOLLAR TREE STORES, INC.'S 220 OBJECTIONS TO PLAINTIFFS' EVIDENCE by Dollar Tree Stores, Inc.. (McClain, Maureen) (Filed on 7/9/2010) Modified on 7/13/2010 (aaa, COURT STAFF). (Entered: 07/09/2010)

Case: 3:07-cv-2050 As of: 11/06/2016 09:14 PM PST 22 of 32

07/09/2010 07/09/2010 07/20/2010 07/20/2010
07/20/2010
07/20/2010

222 Request for Judicial Notice re 218 Reply Memorandum, DEFENDANT DOLLAR TREE STORES, INC.'S REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF REPLY filed byDollar Tree Stores, Inc.. (Related document(s) 218 ) (McClain, Maureen) (Filed on 7/9/2010) (Entered: 07/09/2010)
223 OBJECTIONS to re 218 Reply Memorandum, DEFENDANT DOLLAR TREE STORES, INC.'S RESPONSE TO PLAINTIFFS' EVIDENTIARY OBJECTIONS by Dollar Tree Stores, Inc.. (McClain, Maureen) (Filed on 7/9/2010) (Entered: 07/09/2010)
224 MOTION DEFENDANT'S ADMINISTRATIVE MOTION TO SUBMIT SUPPLEMENTAL BRIEFING IN SUPPORT OF ITS MOTION TO DECERTIFY THE CLASS; REQUEST FOR ORDER SHORTENING TIME FOR BRIEFING re 188 MOTION MOTION TO DECERTIFY THE CLASS DEFENDANT DOLLAR TREE STORES, INC.'S NOTICE OF MOTION AND MOTION TO DECERTIFY THE CLASS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF filed by Dollar Tree Stores, Inc.. Motion Hearing set for 7/23/2010 10:00 AM in Courtroom 1, 17th Floor, San Francisco. (Johnson, Krista) (Filed on 7/20/2010) (Entered: 07/20/2010)
225 Declaration of KRISTA STEVENSON JOHNSON in Support of 224 MOTION DEFENDANT'S ADMINISTRATIVE MOTION TO SUBMIT SUPPLEMENTAL BRIEFING IN SUPPORT OF ITS MOTION TO DECERTIFY THE CLASS; REQUEST FOR ORDER SHORTENING TIME FOR BRIEFING re 188 MOTION MOTION TO DECERTIFY THE CLASS DEFENDANT DOLLAR TREE STORES MOTION DEFENDANT'S ADMINISTRATIVE MOTION TO SUBMIT SUPPLEMENTAL BRIEFING IN SUPPORT OF ITS MOTION TO DECERTIFY THE CLASS; REQUEST FOR ORDER SHORTENING TIME FOR BRIEFING re 188 MOTION MOTION TO DECERTIFY THE CLASS DEFENDANT DOLLAR TREE STORES MOTION DEFENDANT'S ADMINISTRATIVE MOTION TO SUBMIT SUPPLEMENTAL BRIEFING IN SUPPORT OF ITS MOTION TO DECERTIFY THE CLASS; REQUEST FOR ORDER SHORTENING TIME FOR BRIEFING re 188 MOTION MOTION TO DECERTIFY THE CLASS DEFENDANT DOLLAR TREE STORES filed byDollar Tree Stores, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Related document(s) 224 ) (Johnson, Krista) (Filed on 7/20/2010) (Entered: 07/20/2010)
226 Declaration of MATTHEW P. VANDALL in Support of 224 MOTION DEFENDANT'S ADMINISTRATIVE MOTION TO SUBMIT SUPPLEMENTAL BRIEFING IN SUPPORT OF ITS MOTION TO DECERTIFY THE CLASS; REQUEST FOR ORDER SHORTENING TIME FOR BRIEFING re 188 MOTION MOTION TO DECERTIFY THE CLASS DEFENDANT DOLLAR TREE STORES MOTION DEFENDANT'S ADMINISTRATIVE MOTION TO SUBMIT SUPPLEMENTAL BRIEFING IN SUPPORT OF ITS MOTION TO DECERTIFY THE CLASS; REQUEST FOR ORDER SHORTENING TIME FOR BRIEFING re 188 MOTION MOTION TO DECERTIFY THE CLASS DEFENDANT DOLLAR TREE STORES MOTION DEFENDANT'S ADMINISTRATIVE MOTION TO SUBMIT SUPPLEMENTAL BRIEFING IN SUPPORT OF ITS MOTION TO DECERTIFY THE CLASS; REQUEST FOR ORDER SHORTENING TIME FOR BRIEFING re 188 MOTION MOTION TO DECERTIFY THE CLASS DEFENDANT DOLLAR TREE STORES filed byDollar Tree Stores, Inc.. (Attachments: # 1 Exhibit 1−3, # 2 Exhibit 4−8, # 3 Exhibit 9−14, # 4 Exhibit 15−19, # 5 Exhibit 20−25, # 6 Exhibit 26−31, # 7 Exhibit 32−36, # 8 Exhibit 37−41, # 9 Exhibit 42−48, # 10 Exhibit 49−54, # 11 Exhibit 55−59, # 12 Exhibit 60−65, # 13 Exhibit 66−70, # 14 Exhibit 71−74, # 15 Exhibit 75−79, # 16 Exhibit 80−85, # 17 Exhibit 86−91, # 18 Exhibit 92−96, # 19 Exhibit 97−102, # 20 Exhibit 103−108, # 21 Exhibit 109−114, # 22 Exhibit 115−120, # 23 Exhibit 121−126, # 24 Exhibit 127−132, # 25 Exhibit 133−138, # 26 Exhibit 139−144, # 27 Exhibit 145−150, # 28 Exhibit 151−156, # 29 Exhibit 157−160, # 30 Exhibit 161−169, # 31 Exhibit 170−174, # 32 Exhibit 175−180, # 33 Exhibit 181−185, # 34 Exhibit 186−190, # 35 Exhibit 191−200, # 36 Exhibit 201−209, # 37 Exhibit 210−219, # 38 Exhibit 220−227)(Related document(s) 224 ) (Johnson, Krista) (Filed on 7/20/2010) (Entered: 07/20/2010)
227 Proposed Order re 224 MOTION DEFENDANT'S ADMINISTRATIVE MOTION TO SUBMIT SUPPLEMENTAL BRIEFING IN SUPPORT OF ITS MOTION TO DECERTIFY THE CLASS; REQUEST FOR ORDER SHORTENING TIME FOR

Case: 3:07-cv-2050 As of: 11/06/2016 09:14 PM PST 23 of 32

07/22/2010
07/22/2010
07/22/2010 07/27/2010 09/09/2010 09/27/2010

BRIEFING re 188 MOTION MOTION TO DECERTIFY THE CLASS DEFENDANT DOLLAR TREE STORES MOTION DEFENDANT'S ADMINISTRATIVE MOTION TO SUBMIT SUPPLEMENTAL BRIEFING IN SUPPORT OF ITS MOTION TO DECERTIFY THE CLASS; REQUEST FOR ORDER SHORTENING TIME FOR BRIEFING re 188 MOTION MOTION TO DECERTIFY THE CLASS DEFENDANT DOLLAR TREE STORES MOTION DEFENDANT'S ADMINISTRATIVE MOTION TO SUBMIT SUPPLEMENTAL BRIEFING IN SUPPORT OF ITS MOTION TO DECERTIFY THE CLASS; REQUEST FOR ORDER SHORTENING TIME FOR BRIEFING re 188 MOTION MOTION TO DECERTIFY THE CLASS DEFENDANT DOLLAR TREE STORES [PROPOSED] ORDER GRANTING DEFENDANT DOLLAR TREE STORES, INC.'S ADMINISTRATIVE MOTIN TO FILE SUPPLEMENTAL BRIEFING AND ITS REQUEST FOR ORDER SHORTENING TIME by Dollar Tree Stores, Inc.. (Johnson, Krista) (Filed on 7/20/2010) (Entered: 07/20/2010)
228 DECLARATION in Opposition to 224 MOTION DEFENDANT'S ADMINISTRATIVE MOTION TO SUBMIT SUPPLEMENTAL BRIEFING IN SUPPORT OF ITS MOTION TO DECERTIFY THE CLASS; REQUEST FOR ORDER SHORTENING TIME FOR BRIEFING re 188 MOTION MOTION TO DECERTIFY THE CLASS DEFENDANT DOLLAR TREE STORES MOTION DEFENDANT'S ADMINISTRATIVE MOTION TO SUBMIT SUPPLEMENTAL BRIEFING IN SUPPORT OF ITS MOTION TO DECERTIFY THE CLASS; REQUEST FOR ORDER SHORTENING TIME FOR BRIEFING re 188 MOTION MOTION TO DECERTIFY THE CLASS DEFENDANT DOLLAR TREE STORES MOTION DEFENDANT'S ADMINISTRATIVE MOTION TO SUBMIT SUPPLEMENTAL BRIEFING IN SUPPORT OF ITS MOTION TO DECERTIFY THE CLASS; REQUEST FOR ORDER SHORTENING TIME FOR BRIEFING re 188 MOTION MOTION TO DECERTIFY THE CLASS DEFENDANT DOLLAR TREE STORES filed byMiguel A. Cruz, John D. Hansen, Robert Runnings. (Related document(s) 224 ) (Kuehn, Molly) (Filed on 7/22/2010) (Entered: 07/22/2010)
229 Memorandum in Opposition re 224 MOTION DEFENDANT'S ADMINISTRATIVE MOTION TO SUBMIT SUPPLEMENTAL BRIEFING IN SUPPORT OF ITS MOTION TO DECERTIFY THE CLASS; REQUEST FOR ORDER SHORTENING TIME FOR BRIEFING re 188 MOTION MOTION TO DECERTIFY THE CLASS DEFENDANT DOLLAR TREE STORES MOTION DEFENDANT'S ADMINISTRATIVE MOTION TO SUBMIT SUPPLEMENTAL BRIEFING IN SUPPORT OF ITS MOTION TO DECERTIFY THE CLASS; REQUEST FOR ORDER SHORTENING TIME FOR BRIEFING re 188 MOTION MOTION TO DECERTIFY THE CLASS DEFENDANT DOLLAR TREE STORES MOTION DEFENDANT'S ADMINISTRATIVE MOTION TO SUBMIT SUPPLEMENTAL BRIEFING IN SUPPORT OF ITS MOTION TO DECERTIFY THE CLASS; REQUEST FOR ORDER SHORTENING TIME FOR BRIEFING re 188 MOTION MOTION TO DECERTIFY THE CLASS DEFENDANT DOLLAR TREE STORES filed byMiguel A. Cruz, John D. Hansen, Robert Runnings. (Kuehn, Molly) (Filed on 7/22/2010) (Entered: 07/22/2010)
230 Proposed Order DENYING DEFENDANTS ADMINISTRATIVE MOTION TO SUBMIT SUPPLEMENTAL BRIEFING IN SUPPORT OF ITS MOTION TO DECERTIFY THE CLASS; REQUEST FOR ORDER SHORTENING TIME FOR BRIEFING by Miguel A. Cruz, John D. Hansen, Robert Runnings. (Kuehn, Molly) (Filed on 7/22/2010) (Entered: 07/22/2010)
231 ORDER by Judge Samuel Conti denying (224) Administrative Motion to Submit Supplemental Briefing, denying request for Shortened Time for Briefing in case 3:07−cv−02050−SC (sclc2, COURT STAFF) (Filed on 7/27/2010) (Entered: 07/27/2010)
232 ORDER by Judge Samuel Conti granting in part and denying in part (188) Motion to Decertify in case 3:07−cv−02050−SC; granting in part and denying in part (246) Motion to Decertify in case 3:07−cv−04012−SC (sclc2, COURT STAFF) (Filed on 9/9/2010) (Entered: 09/09/2010)
233 Letter from Counsel − JOINT LETTER TO MAGISTRATE JUDGE JOSEPH C. SPERO. (Attachments: # 1 Exhibit A − C, # 2 Exhibit D − F, # 3 Exhibit G − L, # 4 Exhibit M − T)(Johnson, Krista) (Filed on 9/27/2010) (Entered: 09/27/2010)

Case: 3:07-cv-2050 As of: 11/06/2016 09:14 PM PST 24 of 32

09/29/2010 09/29/2010 09/30/2010
09/30/2010 10/01/2010
10/04/2010 10/04/2010 10/05/2010 10/13/2010 10/14/2010 10/14/2010 10/14/2010 10/14/2010 10/14/2010 10/15/2010

234 USCA Case Number 10−80191 (aaa, COURT STAFF) (Filed on 9/29/2010) (Entered: 09/29/2010)
235 NOTICE of Change of Address by Molly Ann DeSario Notice of Change of Attorney Name (DeSario, Molly) (Filed on 9/29/2010) (Entered: 09/29/2010)
236 ERRONEOUSLY E−FILED: COUNSEL TO E−FILE ATTACHMENT USING THE CORRECT MOTION EVENT: SEE DOCKET NUMBER 238 NOTICE by Dollar Tree Stores, Inc. DEFENDANT'S NOTICE OF MOTION AND MOTION TO CHANGE TIME WITH REGARD TO EXPERT DISCOVERY; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF; DECLARATION OF MATTHEW P. VANDALL (Vandall, Matthew) (Filed on 9/30/2010) Modified on 10/1/2010 (aaa, COURT STAFF). (Entered: 09/30/2010)
237 Proposed Order re 238 Motion [PROPOSED] ORDER GRANTING DEFENDANT'S MOTION TO CHANGE TIME WITH REGARD TO EXPERT DISCOVERY by Dollar Tree Stores, Inc.. (Vandall, Matthew) (Filed on 9/30/2010) Modified on 10/1/2010 (aaa, COURT STAFF). (Entered: 09/30/2010)
238 MOTION for Extension of Time to Complete Discovery DEFENDANT'S NOTICE OF MOTION AND MOTION TO CHANGE TIME WITH REGARD TO EXPERT DISCOVERY; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF; DECLARATION OF MATTHEW P. VANDALL filed by Dollar Tree Stores, Inc.. (Vandall, Matthew) (Filed on 10/1/2010) (Entered: 10/01/2010)
239 Memorandum in Opposition TO DEFENDANTS 238 MOTION TO CHANGE TIME WITH REGARD TO EXPERT DISCOVERY filed byMiguel A. Cruz, John D. Hansen, Robert Runnings. (DeSario, Molly) (Filed on 10/4/2010) Modified on 10/6/2010 (aaa, COURT STAFF). (Entered: 10/04/2010)
240 Proposed Order re 239 Memorandum in Opposition DENYING DEFENDANT'S MOTION TO CHANGE TIME WITH REGARD TO EXPERT DISCOVERY by Miguel A. Cruz, John D. Hansen, Robert Runnings. (DeSario, Molly) (Filed on 10/4/2010) (Entered: 10/04/2010)
241 ORDER by Judge Samuel Conti denying (238) Motion for Extension of Time with Regard to Expert Discovery (sclc2, COURT STAFF) (Filed on 10/5/2010) (Entered: 10/05/2010)
242 CLERKS NOTICE. Telephonic Discovery Hearing set for 10/14/2010 at 11:00 AM in Courtroom A, 15th Floor, San Francisco. (klh, COURT STAFF) (Filed on 10/13/2010) (Entered: 10/13/2010)
243 Ex Parte Application for an Order Shortening Time to Hear Defendant's Motion to Compel Discovery Responses; MPA filed by Dollar Tree Stores, Inc.. (Johnson, Krista) (Filed on 10/14/2010) (Entered: 10/14/2010)
244 Declaration of Krista Stevenson Johnson in Support of 243 Ex Parte Application for an Order Shortening Time to Hear Defendant's Motion to Compel Discovery Responses; Exhibits 1−4 filed byDollar Tree Stores, Inc.. (Johnson, Krista) (Filed on 10/14/2010) Modified on 10/15/2010 (aaa, COURT STAFF). (Entered: 10/14/2010)
245 Proposed Order Granting Defedant's 243 Request for an Order Shortening Time by Dollar Tree Stores, Inc. (Johnson, Krista) (Filed on 10/14/2010) Modified on 10/15/2010 (aaa, COURT STAFF). (Entered: 10/14/2010)
246 Letter from Matthew P. Vandall to Magistrate Judge Joseph C. Spero. (Johnson, Krista) (Filed on 10/14/2010) (Entered: 10/14/2010)
247 Minute Entry: TelephonicDiscovery Hearing held on 10/14/2010 before Joseph C. Spero re: Joint Discovery Letter, docket no. 233 in C07−2050 and docket 261 in C07−4012 (Court Reporter Jim Yeomans.) (klh, COURT STAFF) (Date Filed: 10/14/2010) (Entered: 10/14/2010)
248 Proposed Order DENYING DEFENDANTS 243 EX PARTE APPLICATION FOR AN ORDER SHORTENING TIME TO HEAR DEFENDANTS MOTION TO COMPEL DISCOVERY RESPONSES by Robert Runnings. (DeSario, Molly) (Filed on 10/15/2010) Modified on 10/18/2010 (aaa, COURT STAFF). (Entered: 10/15/2010)

Case: 3:07-cv-2050 As of: 11/06/2016 09:14 PM PST 25 of 32

10/15/2010 10/15/2010 10/18/2010
10/18/2010 10/28/2010 11/16/2010 11/19/2010
11/19/2010 11/23/2010
12/03/2010 12/15/2010 12/23/2010

249 MEMORANDUM in Opposition TO DEFENDANTS 243 EX PARTE APPLICATION FOR AN ORDER SHORTING TIME TO HEAR DEFENDANTS MOTION TO COMPEL DISCOVERY RESPONSES filed byRobert Runnings. (DeSario, Molly) (Filed on 10/15/2010) Modified on 10/18/2010 (aaa, COURT STAFF). (Entered: 10/15/2010)
250 DECLARATION of MOLLY A. DESARIO ESQ. IN SUPPORT OF PLAINTIFFS 249 OPPOSITION TO DEFENDANTS EX PARTE APPLICATION FOR AN ORDER SHORTENING TIME TO HEAR DEFENDANTS MOTION TO COMPEL DISCOVERY RESPONSES filed byRobert Runnings. (Attachments: # 1 Exhibit A)(DeSario, Molly) (Filed on 10/15/2010) Modified on 10/18/2010 (aaa, COURT STAFF). (Entered: 10/15/2010)
251 Transcript of Proceedings held on 10/14/10, before Judge Joseph C. Spero. Court Reporter/Transcriber James Yeomans, Telephone number (415) 863−5179. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 1/18/2011. (jjy, COURT STAFF) (Filed on 10/18/2010) (Entered: 10/18/2010)
252 ORDER, by Judge Joseph C. Spero, signed 10/18/10,denying (243) Ex Parte Application for Order Shortening Time in case 3:07−cv−02050−SC (klh, COURT STAFF) (Filed on 10/18/2010) (Entered: 10/18/2010)
253 ORDER Granting Limited Extension of Discovery Deadline. Signed by Judge Samuel Conti on 10/28/2010. (sclc2, COURT STAFF) (Filed on 10/28/2010) (Entered: 10/28/2010)
Set Deadlines/Hearings: Jury Trial set for 3/7/2011 09:30 AM in Courtroom 1, 17th Floor, San Francisco. Pretrial Conference set for 2/18/2011 10:00 AM in Courtroom 1, 17th Floor, San Francisco. (tdm, COURT STAFF) (Filed on 11/16/2010) (Entered: 11/16/2010)
254 ORDER by Judge Samuel Conti denying Motion for Summary Judgment; denying Motion for Summary Judgment; denying Motion for Summary Judgment; denying Motion for Summary Judgment; denying Motion for Summary Judgment; denying Motion for Summary Judgment; denying Motion for Summary Judgment; denying Motion to Dismiss; denying Motion to Dismiss (sclc2, COURT STAFF) (Filed on 11/19/2010) (Entered: 11/19/2010). Signed by Judge Samuel Conti on 11/19/2010. (sclc2, COURT STAFF) (Filed on 11/19/2010) (Entered: 11/19/2010)
255 Minute Entry: Motion Hearing held on 11/19/2010 before Judge Samuel Conti (Date Filed: 11/19/2010). (Court Reporter Belle Ball.) (tdm, COURT STAFF) (Date Filed: 11/19/2010) (Entered: 11/19/2010)
256 Transcript of Proceedings held on November 19, 2010, before Judge Samuel Conti. Court Reporter/Transcriber Belle Ball, CSR, RMR, CRR, Telephone number (415)373−2529, belle_ball@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 2/22/2011. (Ball, Belle) (Filed on 11/23/2010) (Entered: 11/23/2010)
257 NOTICE by Dollar Tree Stores, Inc. PETITION FOR PERMISSION TO APPEAL ORDER DENYING MOTION FOR DECERTIFICATION OF THE CLASS (FRCP 23(f)) (Johnson, Krista) (Filed on 12/3/2010) (Entered: 12/03/2010)
258 USCA Case Number 10−80225 (aaa, COURT STAFF) (Filed on 12/15/2010) (Entered: 12/15/2010)
259 MOTION to Dismiss Claims of Class Members Who Failed To Respond to Defendant's Discovery and Memorandum of Points And Authorities filed by Dollar Tree Stores, Inc.. Motion Hearing set for 1/28/2011 10:00 AM in Courtroom 1, 17th

Case: 3:07-cv-2050 As of: 11/06/2016 09:14 PM PST 26 of 32

12/23/2010
12/23/2010 12/28/2010 01/03/2011
01/03/2011
01/03/2011 01/10/2011 01/11/2011
01/12/2011 01/14/2011 01/17/2011
01/17/2011
01/17/2011

Floor, San Francisco before Hon. Samuel Conti. (Vandall, Matthew) (Filed on 12/23/2010) (Entered: 12/23/2010)
260 Declaration of Matthew Vandall in Support of 259 MOTION to Dismiss Claims of Class Members Who Failed To Respond to Defendant's Discovery and Memorandum of Points And Authorities filed byDollar Tree Stores, Inc.. (Attachments: # 1 Exhibit Exhibits A−D, # 2 Exhibit Exhibits E−H, # 3 Exhibit Exhibit I, # 4 Exhibit Exhibits J−M, # 5 Exhibit Exhibits N−BB)(Related document(s) 259 ) (Vandall, Matthew) (Filed on 12/23/2010) (Entered: 12/23/2010)
261 Proposed Order re 259 MOTION to Dismiss Claims of Class Members Who Failed To Respond to Defendant's Discovery and Memorandum of Points And Authorities by Dollar Tree Stores, Inc.. (Vandall, Matthew) (Filed on 12/23/2010) (Entered: 12/23/2010)
262 NOTICE by Dollar Tree Stores, Inc. of Motion to Dismiss Claims of Class Members who Failed to Respond to Defendant's Discovery (Amended) (Vandall, Matthew) (Filed on 12/28/2010) (Entered: 12/28/2010)
Set/Reset Deadlines as to (259 in 3:07−cv−02050−SC) MOTION to Dismiss Claims of Class Members Who Failed To Respond to Defendant's Discovery and Memorandum of Points And Authorities. Motion Hearing set for 2/4/2010 10:00 AM in Courtroom 1, 17th Floor, San Francisco before Hon. Samuel Conti. (tdm, COURT STAFF) (Filed on 1/3/2011) (Entered: 01/03/2011)
Set/Reset Deadlines as to (259 in 3:07−cv−02050−SC) MOTION to Dismiss Claims of Class Members Who Failed To Respond to Defendant's Discovery and Memorandum of Points And Authorities. Motion Hearing set for 2/4/2011 10:00 AM in Courtroom 1, 17th Floor, San Francisco before Hon. Samuel Conti. (tdm, COURT STAFF) (Filed on 1/3/2011) (Entered: 01/03/2011)
263 Letter from Molly DeSario to Judge Conti Requesting a Case Management Conference. (DeSario, Molly) (Filed on 1/3/2011) (Entered: 01/03/2011)
264 ORDER REFERRING CASE to Magistrate Judge for Report and Recommendation. Signed by Judge Samuel Conti on 1/10/11. (tdm, COURT STAFF) (Filed on 1/10/2011) (Entered: 01/10/2011)
265 CLERKS NOTICE The Pretrial Conference scheduled for February 18, 2011 and the Trial date scheduled for March 7, 2011 are vacated. A Trial Setting Conference is scheduled for June 10, 2011 at 10:00 a.m.in Courtroom 1, 17th Floor, San Francisco before Hon. Samuel Conti. (tdm, COURT STAFF) (Filed on 1/11/2011) (Entered: 01/11/2011)
266 ORDER of USCA: Respondent's request for Judicial Notice is denied. (aaa, COURT STAFF) (Filed on 1/12/2011) (Entered: 01/12/2011)
267 Proposed Order and Stipulation re Trial Setting Conference by Dollar Tree Stores, Inc.. (Vandall, Matthew) (Filed on 1/14/2011) (Entered: 01/14/2011)
268 MEMORANDUM in Opposition re 259 MOTION to Dismiss Claims of Class Members Who Failed To Respond to Defendant's Discovery and Memorandum of Points And Authorities, 262 Notice (Other) filed byMiguel A. Cruz, John D. Hansen, Robert Runnings. (Related document(s) 259 , 262 ) (DeSario, Molly) (Filed on 1/17/2011) (Entered: 01/17/2011)
269 DECLARATION of Molly A. DeSario in Opposition to 259 MOTION to Dismiss Claims of Class Members Who Failed To Respond to Defendant's Discovery and Memorandum of Points And Authorities, 262 Notice (Other) filed byMiguel A. Cruz, John D. Hansen, Robert Runnings. (Related document(s) 259 , 262 ) (DeSario, Molly) (Filed on 1/17/2011) (Entered: 01/17/2011)
270 Proposed Order re 259 MOTION to Dismiss Claims of Class Members Who Failed To Respond to Defendant's Discovery and Memorandum of Points And Authorities, 262 Notice (Other) by Miguel A. Cruz, John D. Hansen, Robert Runnings. (DeSario, Molly) (Filed on 1/17/2011) (Entered: 01/17/2011)

Case: 3:07-cv-2050 As of: 11/06/2016 09:14 PM PST 27 of 32

01/18/2011 01/18/2011 01/18/2011 01/21/2011 02/02/2011
02/02/2011
02/03/2011 02/03/2011 02/03/2011 02/04/2011 02/04/2011 02/04/2011 02/07/2011

271 STIPULATION AND ORDER Status Conference set for 6/10/11 is continued to 6/24/2011 10:00 AM in Courtroom 1, 17th Floor, San Francisco before Hon. Samuel Conti.. Signed by Judge Samuel Conti on 1/18/11. (tdm, COURT STAFF) (Filed on 1/18/2011) Modified on 1/18/2011 (tdm, COURT STAFF). (Entered: 01/18/2011)
272 Minute Entry: TelephonicStatus Conference held re: Letter to Judge Conti, docket no. 263, on 1/14/11. Parties directed to addres issues in letter by meeting and conferring and raise issues with Judge Conti at the trial conference. (Recording #FTR 2:57−3:07.) (klh, COURT STAFF) (Date Filed: 1/18/2011) (Entered: 01/18/2011)
273 Letter from Molly A. DeSario Regarding Electronic Filing of Plaintiffs' Opposition to MTD. (DeSario, Molly) (Filed on 1/18/2011) (Entered: 01/18/2011)
274 Reply Memorandum IN SUPPORT OF DEFENDANT'S 259 MOTION TO DISMISS CLAIMS OF CLASS MEMBERS WHO FAILED TO RESPOND TO DEFENDANT'S DISCOVERY [FED. R. CIV. P. RULE 37] filed byDollar Tree Stores, Inc.. (Zaletel, Robert) (Filed on 1/21/2011) Modified on 1/24/2011 (aaa, COURT STAFF). (Entered: 01/21/2011)
275 DECLARATION of Molly A. DeSario in Opposition to 269 Declaration in Opposition, 259 MOTION to Dismiss Claims of Class Members Who Failed To Respond to Defendant's Discovery and Memorandum of Points And Authorities SUPPLEMENTAL DECLARATION filed byMiguel A. Cruz, John D. Hansen, Robert Runnings. (Attachments: # 1 Exhibit A to F)(Related document(s) 269 , 259 ) (DeSario, Molly) (Filed on 2/2/2011) (Entered: 02/02/2011)
276 OBJECTIONS to SUPPLEMENTAL 275 DECLARATION OF MOLLY A. DESARIO IN SUPPORT OF PLAINTIFFS' OPPOSITION TO DEFENDANT DOLLAR TREE STORES, INC.'S MOTION TO DISMISS CLAIMS OF CLASS MEMBERS WHO FAILED TO RESPOND TO DEFENDANT'S DISCOVERY by Dollar Tree Stores, Inc.. (Zaletel, Robert) (Filed on 2/2/2011) Modified on 2/3/2011 (aaa, COURT STAFF). (Entered: 02/02/2011)
277 MOTION to Bifurcate the Liability and Damages Phases of Trial and to Set the Order of Presentation and Argument at Trial filed by Dollar Tree Stores, Inc.. Motion Hearing set for 3/11/2011 10:00 AM in Courtroom 1, 17th Floor, San Francisco before Hon. Samuel Conti. (Vandall, Matthew) (Filed on 2/3/2011) (Entered: 02/03/2011)
278 Declaration of Matthew P. Vandall in Support of 277 MOTION to Bifurcate the Liability and Damages Phases of Trial and to Set the Order of Presentation and Argument at Trial filed byDollar Tree Stores, Inc.. (Attachments: # 1 Exhibit A−B)(Related document(s) 277 ) (Vandall, Matthew) (Filed on 2/3/2011) (Entered: 02/03/2011)
279 Proposed Order re 277 MOTION to Bifurcate the Liability and Damages Phases of Trial and to Set the Order of Presentation and Argument at Trial by Dollar Tree Stores, Inc.. (Vandall, Matthew) (Filed on 2/3/2011) (Entered: 02/03/2011)
280 Amended NOTICE by Dollar Tree Stores, Inc. re 277 MOTION to Bifurcate the Liability and Damages Phases of Trial and to Set the Order of Presentation and Argument at Trial Resetting Hearing to 4/4/2011 at 10:00 AM in Courtroom 1, 17th Floor, San Francisco before Hon. Samuel Conti (Vandall, Matthew) (Filed on 2/4/2011) Modified on 2/4/2011 (mjj2, COURT STAFF). (Entered: 02/04/2011)
Set/Reset Deadlines as to 277 MOTION to Bifurcate the Liability and Damages Phases of Trial and to Set the Order of Presentation and Argument at Trial per Amended Notice 280 . Motion Hearing set for 4/4/2011 10:00 AM in Courtroom 1, 17th Floor, San Francisco before Hon. Samuel Conti. (mjj2, COURT STAFF) (Filed on 2/4/2011) (Entered: 02/04/2011)
281 Second Amended NOTICE by Dollar Tree Stores, Inc. re 277 MOTION to Bifurcate the Liability and Damages Phases of Trial and to Set the Order of Presentation and Argument at Trial − Second Amended (Vandall, Matthew) (Filed on 2/4/2011) Modified on 2/7/2011 (mjj2, COURT STAFF). (Entered: 02/04/2011)
Set/Reset Deadlines as to 277 MOTION to Bifurcate the Liability and Damages Phases of Trial and to Set the Order of Presentation and Argument at Trial. Motion Hearing set for 4/8/2011 10:00 AM in Courtroom 1, 17th Floor, San Francisco before

Case: 3:07-cv-2050 As of: 11/06/2016 09:14 PM PST 28 of 32

03/08/2011 03/18/2011
03/18/2011
03/18/2011 03/24/2011
03/24/2011 03/24/2011 03/24/2011 03/25/2011 03/25/2011 03/25/2011 03/25/2011

Hon. Samuel Conti. (tdm, COURT STAFF) (Filed on 2/7/2011) (Entered: 02/07/2011)
282 ORDER by Judge Samuel Conti granting in part and denying in part (259) Motion to Dismiss in case 3:07−cv−02050−SC (sclc2, COURT STAFF) (Filed on 3/8/2011) (Entered: 03/08/2011)
283 RESPONSE (re 277 MOTION to Bifurcate the Liability and Damages Phases of Trial and to Set the Order of Presentation and Argument at Trial ) PLAINTIFFS MEMORANDUM IN OPPOSITION TO DEFENDANT DOLLAR TREE STORES, INC.S MOTION TO BIFURCATE THE LIABILITY AND DAMAGES PHASES OF TRIAL AND TO SET THE ORDER OF PRESENTATION AND ARGUMENT AT TRIAL filed byMiguel A. Cruz, John D. Hansen, Robert Runnings. (DeSario, Molly) (Filed on 3/18/2011) (Entered: 03/18/2011)
284 Request for Judicial Notice re 283 Opposition/Response to Motion, SUPPORT OF PLAINTIFFS OPPOSITION TO DEFENDANT DOLLAR TREE STORES, INC.S MOTION TO BIFURCATE THE LIABILITY AND DAMAGES PHASES OF TRIAL AND TO SET THE ORDER OF PRESENTATION AND ARGUMENT AT TRIAL filed byMiguel A. Cruz, John D. Hansen, Robert Runnings. (Attachments: # 1 Exhibit A−C)(Related document(s) 283 ) (DeSario, Molly) (Filed on 3/18/2011) (Entered: 03/18/2011)
285 Proposed Order re 283 Opposition/Response to Motion, TO BIFURCATE THE LIABILITY AND DAMAGES PHASES OF TRIAL AND TO SET THE ORDER OF PRESENTATION AND ARGUMENT AT TRIAL by Miguel A. Cruz, John D. Hansen, Robert Runnings. (DeSario, Molly) (Filed on 3/18/2011) (Entered: 03/18/2011)
286 ERRONEOUSLY E−FILED: COUNSEL TO E−FILE THE MOTION USING THE CORRECT MOTION EVENT PRETRIAL MEMORANDUM NOTICE OF MOTION AND MOTION FOR PRE−TRIAL ORDER NO. 1 by Miguel A. Cruz, John D. Hansen, Robert Runnings. (Attachments: # 1 Proposed Order)(DeSario, Molly) (Filed on 3/24/2011) Modified on 3/25/2011 (aaa, COURT STAFF). (Entered: 03/24/2011)
287 MOTION for Leave to File AND SERVE A MOTION FOR RECONSIDERATION OF THE DECERTIFICATION ORDER; MEMORANDUM OF POINTS AND AUTHORITIES filed by Miguel A. Cruz, John D. Hansen, Robert Runnings. (DeSario, Molly) (Filed on 3/24/2011) . (Entered: 03/24/2011)
288 Declaration of Molly A. DeSario in Support of 287 MOTION for Leave to File AND SERVE A MOTION FOR RECONSIDERATION OF THE DECERTIFICATION ORDER; MEMORANDUM OF POINTS AND AUTHORITIES filed byMiguel A. Cruz, John D. Hansen, Robert Runnings. (Attachments: # 1 Exhibit A−D)(Related document(s) 287 ) (DeSario, Molly) (Filed on 3/24/2011) (Entered: 03/24/2011)
289 Proposed Order re 287 MOTION for Leave to File AND SERVE A MOTION FOR RECONSIDERATION OF THE DECERTIFICATION ORDER; MEMORANDUM OF POINTS AND AUTHORITIES by Miguel A. Cruz, John D. Hansen, Robert Runnings. (DeSario, Molly) (Filed on 3/24/2011) (Entered: 03/24/2011)
290 MOTION PLAINTIFFS' NOTICE OF MOTION AND MOTION FOR PRE−TRIAL ORDER NO. 1 filed by Miguel A. Cruz, John D. Hansen, Robert Runnings. Motion Hearing set for 5/27/2011 10:00 AM in Courtroom 1, 17th Floor, San Francisco before Hon. Samuel Conti. (Attachments: # 1 Proposed Order)(DeSario, Molly) (Filed on 3/25/2011) (Entered: 03/25/2011)
291 REPLY (re 277 MOTION to Bifurcate the Liability and Damages Phases of Trial and to Set the Order of Presentation and Argument at Trial ) filed byDollar Tree Stores, Inc.. (Vandall, Matthew) (Filed on 3/25/2011) (Entered: 03/25/2011)
292 Declaration of Matthew Vandall in Support of 291 Reply to Opposition/Response filed byDollar Tree Stores, Inc.. (Attachments: *** # 1 Exhibit A FILED IN ERROR. PLEASE SEE DOCKET # 293 . *** )(Related document(s) 291 ) (Vandall, Matthew) (Filed on 3/25/2011) Modified on 3/28/2011 (ewn, COURT STAFF). (Entered: 03/25/2011)
293 EXHIBITS re 292 Declaration in Support CORRECTION OF DOCKET filed byDollar Tree Stores, Inc.. (Related document(s) 292 ) (Vandall, Matthew) (Filed on 3/25/2011)

Case: 3:07-cv-2050 As of: 11/06/2016 09:14 PM PST 29 of 32

03/31/2011 03/31/2011 03/31/2011
04/07/2011
04/07/2011 04/07/2011 04/12/2011 04/18/2011 04/18/2011
04/22/2011
04/27/2011 05/06/2011

(Entered: 03/25/2011)
294 ORDER by Judge Samuel Conti granting (287) Motion for Leave to File in case 3:07−cv−02050−SC (sclc2, COURT STAFF) (Filed on 3/31/2011) (Entered: 03/31/2011)
Set/Reset Deadlines as to (277 in 3:07−cv−02050−SC) MOTION to Bifurcate the Liability and Damages Phases of Trial and to Set the Order of Presentation and Argument at Trial. Motion Hearing set for 5/27/2011 10:00 AM in Courtroom 1, 17th Floor, San Francisco before Hon. Samuel Conti. (tdm, COURT STAFF) (Filed on 3/31/2011) (Entered: 03/31/2011)
Set/Reset Deadlines as to (277 in 3:07−cv−02050−SC) MOTION to Bifurcate the Liability and Damages Phases of Trial and to Set the Order of Presentation and Argument at Trial, (287 in 3:07−cv−02050−SC) MOTION for Leave to File AND SERVE A MOTION FOR RECONSIDERATION OF THE DECERTIFICATION ORDER; MEMORANDUM OF POINTS AND AUTHORITIES. Motion Hearing set for 5/27/2011 10:00 AM in Courtroom 1, 17th Floor, San Francisco before Hon. Samuel Conti. (tdm, COURT STAFF) (Filed on 3/31/2011) (Entered: 03/31/2011)
295 Declaration of Kate T. Ngo IN COMPLIANCE WITH THE MARCH 8, 2011 282 ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS CLAIMS OF CLASS MEMBERS WHO FAILED TO RESPOND TO DISCOVERY REQUESTS filed byMiguel A. Cruz, John D. Hansen, Robert Runnings. (Attachments: # 1 Exhibit A−B)(DeSario, Molly) (Filed on 4/7/2011) Modified on 4/8/2011 (aaa, COURT STAFF). (Entered: 04/07/2011)
296 EXHIBITS re 295 Declaration in Support, Exhibit C filed byMiguel A. Cruz, John D. Hansen, Robert Runnings. (Related document(s) 295 ) (DeSario, Molly) (Filed on 4/7/2011) (Entered: 04/07/2011)
297 EXHIBITS re 296 Exhibits, 295 Declaration in Support, Exhibit D filed byMiguel A. Cruz, John D. Hansen, Robert Runnings. (Related document(s) 296 , 295 ) (DeSario, Molly) (Filed on 4/7/2011) (Entered: 04/07/2011)
298 OBJECTIONS to re 295 Declaration in Support, DEFENDANT DOLLAR TREE STORES, INC.'S OBJECTION TO DECLARATION OF KATE T. NGO FILED ON APRIL 7, 2011 by Dollar Tree Stores, Inc.. (Attachments: # 1 Exhibit A)(Vandall, Matthew) (Filed on 4/12/2011) (Entered: 04/12/2011)
299 RESPONSE to re 298 Objection, TO DECLARATION OF KATE T. NGO FILED ON APRIL 7, 2011 by Miguel A. Cruz, John D. Hansen, Robert Runnings. (Attachments: # 1 Proposed Order)(DeSario, Molly) (Filed on 4/18/2011) (Entered: 04/18/2011)
300 Declaration of Kate T. Ngo in Support of 299 Response ( Non Motion ), 295 Declaration in Support, SUPPLEMENTAL DECLARATION IN COMPLIANCE WITH THE MARCH 8, 2011 ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS MOTION TO DISMISS CLAIMS OF CLASS MEMBERS WHO FAILED TO RESPOND TO DISCOVERY REQUESTS filed byMiguel A. Cruz, John D. Hansen, Robert Runnings. (Related document(s) 299 , 295 ) (DeSario, Molly) (Filed on 4/18/2011) (Entered: 04/18/2011)
301 MOTION for Reconsideration re 232 Order on Motion for Miscellaneous Relief, DECERTIFICATION ORDER filed by Robert Runnings. Motion Hearing set for 5/27/2011 10:00 AM in Courtroom 1, 17th Floor, San Francisco before Hon. Samuel Conti. (Attachments: # 1 Proposed Order GRANTING PLAINTIFFS MOTION FOR RECONSIDERATION OF THE DECERTIFICATION ORDER)(Cole, Scott) (Filed on 4/22/2011) (Entered: 04/22/2011)
302 ORDER granting Defendant's Objection to Plaintiffs' Declaration. Signed by Judge Samuel Conti on 04/27/2011. (sclc2, COURT STAFF) (Filed on 4/27/2011) (Entered: 04/27/2011)
303 RESPONSE (re 290 MOTION PLAINTIFFS' NOTICE OF MOTION AND MOTION FOR PRE−TRIAL ORDER NO. 1 ) DEFENDANT'S OPPOSITION TO PLAINTIFFS' MOTION FOR PRE−TRIAL ORDER NO. 1 filed byDollar Tree Stores, Inc.. (Vandall, Matthew) (Filed on 5/6/2011) (Entered: 05/06/2011)

Case: 3:07-cv-2050 As of: 11/06/2016 09:14 PM PST 30 of 32

05/06/2011
05/06/2011 05/06/2011
05/06/2011
05/06/2011 05/11/2011 05/13/2011 05/13/2011 05/13/2011 05/27/2011 06/24/2011

304 RESPONSE (re 301 MOTION for Reconsideration re 232 Order on Motion for Miscellaneous Relief, DECERTIFICATION ORDER MOTION for Reconsideration re 232 Order on Motion for Miscellaneous Relief, DECERTIFICATION ORDER ) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DOLLAR TREE'S OPPOSITION TO PLAINTIFFS' MOTION FOR RECONSIDERATION filed byDollar Tree Stores, Inc.. (Vandall, Matthew) (Filed on 5/6/2011) (Entered: 05/06/2011)
305 Declaration of DAVID MCDEARMON in Support of 304 Opposition/Response to Motion, DECLARATION OF DAVID McDEARMON IN SUPPORT OF DOLLAR TREE STORES, INC.S OPPOSITION TO PLAINTIFFS MOTION FOR RECONSIDERATION filed byDollar Tree Stores, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Related document(s) 304 ) (Vandall, Matthew) (Filed on 5/6/2011) (Entered: 05/06/2011)
306 Declaration of GUS VASTARDIS in Support of 304 Opposition/Response to Motion, 303 Opposition/Response to Motion, DECLARATION OF GUS VASTARDIS IN SUPPORT OF Dollar Tree's Oppositions to Plaintiffs' Motions For Reconsideration and FOR PRE−TRIAL ORDER NO. 1 filed byDollar Tree Stores, Inc.. (Attachments: # 1 Exhibit A−L, # 2 Exhibit M−Z, # 3 Exhibit AA−LL, # 4 Exhibit MM−ZZ, # 5 Exhibit AAA−RRR)(Related document(s) 304 , 303 ) (Vandall, Matthew) (Filed on 5/6/2011) (Entered: 05/06/2011)
307 Declaration of MATTHEW P. VANDALL in Support of 304 Opposition/Response to Motion, 303 Opposition/Response to Motion, DECLARATION OF MATTHEW P. VANDALL IN SUPPORT OF DOLLAR TREE'S OPPOSITIONS TO PLAINTIFFS' MOTION FOR RECONSIDERATION & PLAINTIFFS' MOTION FOR PRE−TRIAL ORDER NO. 1 filed byDollar Tree Stores, Inc.. (Attachments: # 1 Exhibit 1−6, # 2 Exhibit 7−14, # 3 Exhibit 15−22, # 4 Exhibit 23, # 5 Exhibit 24−25)(Related document(s) 304 , 303 ) (Vandall, Matthew) (Filed on 5/6/2011) (Entered: 05/06/2011)
308 Statement re 277 MOTION to Bifurcate the Liability and Damages Phases of Trial and to Set the Order of Presentation and Argument at Trial STATEMENT OF RECENT DECISION IN CONNECTION WITH DOLLAR TREE'S MOTION TO BIFURCATE THE LIABILITY AND DAMAGES PHASES OF TRIAL AND TO SET THE ORDER OF PRESENTATION AND ARGUMENT AT TRIAL by Dollar Tree Stores, Inc.. (Vandall, Matthew) (Filed on 5/6/2011) (Entered: 05/06/2011)
309 NOTICE of Change In Counsel by Molly Ann DeSario (DeSario, Molly) (Filed on 5/11/2011) (Entered: 05/11/2011)
310 REPLY (re 290 MOTION PLAINTIFFS' NOTICE OF MOTION AND MOTION FOR PRE−TRIAL ORDER NO. 1 ) TO DEFENDANT DOLLAR TREE'S OPPOSITION TO PLAINTIFFS MOTION FOR PRETRIAL ORDER NO. 1 filed byMiguel A. Cruz, John D. Hansen, Robert Runnings. (DeSario, Molly) (Filed on 5/13/2011) (Entered: 05/13/2011)
311 REPLY (re 301 MOTION for Reconsideration re 232 Order on Motion for Miscellaneous Relief, DECERTIFICATION ORDER MOTION for Reconsideration re 232 Order on Motion for Miscellaneous Relief, DECERTIFICATION ORDER ) TO DEFENDANT'S OPPOSITION TO PLAINTIFFS MOTION FOR RECONSIDERATION filed byMiguel A. Cruz, John D. Hansen, Robert Runnings. (DeSario, Molly) (Filed on 5/13/2011) (Entered: 05/13/2011)
312 Declaration of Molly A. DeSario in Support of 311 Reply to Opposition/Response, TO DEFENDANT'S OPPOSITION TO PLAINTIFFS' MOTION FOR RECONSIDERATION filed byMiguel A. Cruz, John D. Hansen, Robert Runnings. (Related document(s) 311 ) (DeSario, Molly) (Filed on 5/13/2011) (Entered: 05/13/2011)
313 Minute Entry: Motion Hearing held on 5/27/2011 before Judge Samuel Conti (Date Filed: 5/27/2011). (Court Reporter Debra Pas.) (tdm, COURT STAFF) (Date Filed: 5/27/2011) (Entered: 05/27/2011)
314 Brief re 304 Opposition/Response to Motion, 277 MOTION to Bifurcate the Liability and Damages Phases of Trial and to Set the Order of Presentation and Argument at Trial, 303 Opposition/Response to Motion, DEFENDANT DOLLAR TREE STORES, INC.S SUPPLEMENTAL MEMORANDUM OF POINTS AND AUTHORITIES

Case: 3:07-cv-2050 As of: 11/06/2016 09:14 PM PST 31 of 32

06/24/2011
06/24/2011
06/24/2011 06/24/2011 06/24/2011 07/08/2011 07/08/2011 07/18/2011 09/02/2011 09/09/2011 09/26/2011 09/27/2011 10/14/2011

REGARDING THE IMPROPRIETY OF CONTINUED CLASS CERTIFICATION filed byDollar Tree Stores, Inc.. (Related document(s) 304 , 277 , 303 ) (Vandall, Matthew) (Filed on 6/24/2011) (Entered: 06/24/2011)
315 Declaration of MATTHEW P. VANDALL in Support of 314 Brief, DECLARATION OF MATTHEW P. VANDALL IN SUPPORT OF DOLLAR TREE STORES, INC.S SUPPLEMENTAL MEMORANDUM REGARDING THE PROPRIETY OF CONTINUED CLASS CERTIFICATION filed byDollar Tree Stores, Inc.. (Attachments: # 1 Exhibit 1−8, # 2 Exhibit 9−15, # 3 Exhibit 16−21, # 4 Exhibit 22−27, # 5 Exhibit 28)(Related document(s) 314 ) (Vandall, Matthew) (Filed on 6/24/2011) (Entered: 06/24/2011)
316 Declaration of GUS VASTARDIS in Support of 314 Brief, DECLARATION OF GUS VASTARDIS IN SUPPORT OF DOLLAR TREE STORES, INC.S SUPPLEMENTAL MEMORANDUM REGARDING THE PROPRIETY OF CONTINUED CLASS CERTIFICATION filed byDollar Tree Stores, Inc.. (Attachments: # 1 Exhibit 1−12, # 2 Exhibit 13−27)(Related document(s) 314 ) (Vandall, Matthew) (Filed on 6/24/2011) (Entered: 06/24/2011)
317 Brief IN SUPPORT OF CLASS CERTIFICATION filed byMiguel A. Cruz, John D. Hansen, Robert Runnings. (DeSario, Molly) (Filed on 6/24/2011) (Entered: 06/24/2011)
318 Declaration of Molly A. DeSario in Support of 317 Brief CONTINUING CLASS CERTIFICATION filed byMiguel A. Cruz, John D. Hansen, Robert Runnings. (Related document(s) 317 ) (DeSario, Molly) (Filed on 6/24/2011) (Entered: 06/24/2011)
319 Proposed Order re 317 Brief GRANTING CONTINUED CLASS CERTIFICATION by Miguel A. Cruz, John D. Hansen, Robert Runnings. (DeSario, Molly) (Filed on 6/24/2011) (Entered: 06/24/2011)
320 ORDER by Judge Samuel Conti decertifying class in case 3:07−cv−02050−SC (sclc2, COURT STAFF) (Filed on 7/8/2011) (Entered: 07/08/2011)
Set Deadlines/Hearings: Case Management Conference set for 9/9/2011 10:00 AM in Courtroom 1, 17th Floor, San Francisco before Hon. Samuel Conti. (sclc2, COURT STAFF) (Filed on 7/8/2011) (Entered: 07/08/2011)
321 ORDER by Judge Samuel Conti denying (277) Motion to Bifurcate; denying (290) Motion for Pre−Trial Order No. 1 in case 3:07−cv−02050−SC (sclc2, COURT STAFF) (Filed on 7/18/2011) (Entered: 07/18/2011)
322 JOINT CASE MANAGEMENT STATEMENT JOINT SUPPLEMENTAL CASE MANAGEMENT STATEMENT filed by Dollar Tree Stores, Inc.. (Vandall, Matthew) (Filed on 9/2/2011) (Entered: 09/02/2011)
323 Minute Entry: Status Conference − Held. The statute of limitations is tolled for 90 days from today to allow the discharged plaintiffs time to file individual actions. No further dates given. (Date Filed: 9/9/2011). (Court Reporter Debra Pas.) (tdm, COURT STAFF) (Date Filed: 9/9/2011) (Entered: 09/09/2011)
324 STIPULATION and [Proposed] Order Dismissing Plaintiffs' FLSA Allegations Without Prejudice by Dollar Tree Stores, Inc.. (Vandall, Matthew) (Filed on 9/26/2011) (Entered: 09/26/2011)
325 STIPULATION AND ORDER Dismissing Plaintiffs' FLSA Allegations Without Prejudice. Signed by Judge Samuel Conti on 9/27/11. (tdm, COURT STAFF) (Filed on 9/27/2011) (Entered: 09/27/2011)
326 Transcript of Proceedings held on 9−9−2011, before Judge Samuel Conti. Court Reporter/Transcriber Debra L. Pas, CRR, Telephone number (415) 431−1477. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 1/12/2012. (Pas, Debra) (Filed on 10/14/2011)

Case: 3:07-cv-2050 As of: 11/06/2016 09:14 PM PST 32 of 32

12/02/2011
12/09/2011 05/11/2012 05/23/2012

(Entered: 10/14/2011)
327 STIPULATION OF VOLUNTARY DISMISSAL WITH PREJUDICE CONCERNING ALL CLAIMS ASSERTED BY PLAINTIFFS MIGUEL CRUZ, JOHN HANSEN AND ROBERT RUNNINGS by Miguel A. Cruz, John D. Hansen, Robert Runnings. (DeSario, Molly) (Filed on 12/2/2011) (Entered: 12/02/2011)
328 STIPULATION AND ORDER DISMISSING CASE (tdm, COURT STAFF) (Filed on 12/9/2011) (Entered: 12/09/2011)
329 NOTICE of Change In Counsel by Maureen E. McClain (McClain, Maureen) (Filed on 5/11/2012) (Entered: 05/11/2012)
330 Declaration of Molly A. DeSario REGARDING CERTIFICATION OF COMPLIANCE WITH PROTECTIVE ORDER filed byMiguel A. Cruz, John D. Hansen, Robert Runnings. (DeSario, Molly) (Filed on 5/23/2012) (Entered: 05/23/2012)

 
 Case: 3:07-cv-04012-SC As of: 07/27/2011 02:39 PM PDT 1 of 33
ADRMOP, CONSOL, E−Filing, ENETERM
U.S. District Court California Northern District (San Francisco) CIVIL DOCKET FOR CASE #: 3:07−cv−04012−SC

Runnings v. Dollar Tree Stores, Inc. Assigned to: Hon. Samuel Conti Referred to: Magistrate Judge Joseph C. Spero Lead case: 3:07−cv−02050−SC Member case: (View Member Case)
Case in other court: Alameda County Superior Court, RG 07334249
Cause: 28:1332 Diversity−Fair Labor Standards Act
Plaintiff

Date Filed: 08/06/2007 Jury Demand: None Nature of Suit: 710 Labor: Fair Standards Jurisdiction: Federal Question

Robert Runnings individually, and on behalf of all others similarly situated

represented by Scott Edward Cole Scott Cole &Associates, APC 1970 Broadway Suite 950 Oakland, CA 94612 (510) 891−9800 Fax: 510−891−7030 Email: scole@scalaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carrie S. Lin Cooley Manion Jones Hake &Kurowski 201 Spear Street, Suite 1800 San Francisco, CA 94105 415−512−4381 Fax: 415−512−6791 Email: clin@cmjhklaw.com TERMINATED: 10/16/2008 ATTORNEY TO BE NOTICED

Clyde Hobbs Charlton Invalid email address as of 02/04/08 Email: invalidaddress@invalidaddress.com TERMINATED: 08/30/2007 ATTORNEY TO BE NOTICED

Eileen Marie Bissen Scott Cole &Associates, APC 1970 Broadway Street, 9th Floor Oakland, CA 94612 510−891−9800 Fax: 510−891−7030 Email: ebissen@scalaw.com ATTORNEY TO BE NOTICED

Kevin Robert Allen Minami Tamaki LLP 360 Post Street 8th Floor San Francisco, CA 94108 415−788−9000 Fax: 415−398−3887 Email: kallen@minamitamaki.com ATTORNEY TO BE NOTICED

Matthew Roland Bainer Scott Cole &Associates, APC

Case: 3:07-cv-04012-SC As of: 07/27/2011 02:39 PM PDT 2 of 33
1970 Broadway Ninth Floor Oakland, CA 94612 510−891−9800 Fax: 510−891−7030 Email: mrbainer@scalaw.com ATTORNEY TO BE NOTICED
Molly Ann DeSario Scott Cole &Associates, APC 1970 Broadway, Ninth Floor Oakland, CA 94612 510−891−9800 Fax: 510−891−7030 Email: mdesario@scalaw.com ATTORNEY TO BE NOTICED
Rosa I. Vigil−Gallenberg Gallenberg PC 9701 Wilshire Blvd, Suite 1000 Beverly Hills, CA 90212 (310) 295−1654 Fax: (310) 733−5654 Email: rosa@gallenberglaw.com ATTORNEY TO BE NOTICED
Steven Matthew Hicks Scott Cole and Associates 1970 Broadway Ninth Floor Oakland, CA 94612 510−891−9800 Fax: 510−891−7030 Email: SHicks@scalaw.com ATTORNEY TO BE NOTICED

V. Defendant Dollar Tree Stores, Inc.

represented by Alex Hernaez Fox Rothschild LLP 235 Pine Street Suite 1500 San Francisco, CA 94104 415−364−5540 Fax: 415−391−4436 Email: ahernaez@kmm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matthew P. Vandall LITTLER MENDELSON 650 California Street 20th Floor San Francisco, CA 94108.2693 415 433 1940 Fax: 415.399.8490 Email: mvandall@littler.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert David Links Slote &Links 100 Pine Street Suite 750

Case: 3:07-cv-04012-SC As of: 07/27/2011 02:39 PM PDT 3 of 33
San Francisco, CA 94111 415−393−8001 Fax: 415−294−4545 Email: bolinks@sbcglobal.net LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rossana S. Eltanal Littler Mendelson 650 California Street 20th Floor San Francisco, CA 94108.2693 4154331940 Fax: 4157237604 Email: reltanal@littler.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Beth Hirsch Berman Williams Mullen Dominion Tower, Suite 1700 999 Waterside Drive Norfolk, VA 23510 757−629−0604 Fax: 757−629−0660 Email: bberman@williamsmullen.com ATTORNEY TO BE NOTICED
Krista Stevenson Johnson Littler, Mendelson 650 California Street, 20th Floor San Francisco, Ca 94108−2693 (415) 433−1940 Fax: 415 399−8490 Email: kjohnson@littler.com ATTORNEY TO BE NOTICED
Maureen E. McClain Littler Mendelson 650 California Street 20th Floor San Francisco, CA 94108−2693 415−433−1940 Fax: 415−399−8940 Email: mmcclain@littler.com ATTORNEY TO BE NOTICED

Date Filed 08/06/2007
08/06/2007 08/06/2007

# Docket Text
1 NOTICE OF REMOVAL (no process) from Alameda County Superior Court. Their case number is RG 07334249. (Filing fee $350; receipt number 34611009071). Filed by Dollar Tree Stores Inc. (slh, COURT STAFF) (Filed on 8/6/2007) Additional attachment(s) added on 8/7/2007 (far, COURT STAFF). Additional attachment(s) added on 8/9/2007 (far, COURT STAFF). (Entered: 08/06/2007)
2 ADR SCHEDULING ORDER: Case Management Statement due by 11/7/2007. Case Management Conference set for 11/14/2007 01:30 PM. (Attachments: # 1 EMC Standing Order; # 2 Case Management Standing Order)(slh, COURT STAFF) (Filed on 8/6/2007) (Entered: 08/06/2007)
CASE DESIGNATED for Electronic Filing. (slh, COURT STAFF) (Filed on 8/6/2007) (Entered: 08/06/2007)

Case: 3:07-cv-04012-SC As of: 07/27/2011 02:39 PM PDT 4 of 33

08/06/2007 08/06/2007
08/06/2007
08/06/2007
08/07/2007 08/07/2007 08/07/2007 08/08/2007
08/08/2007 08/09/2007 08/09/2007 08/10/2007 08/10/2007 08/13/2007

3 Declination to Proceed Before a U.S. Magistrate Judge by Dollar Tree Stores, Inc. (slh, COURT STAFF) (Filed on 8/6/2007) (Entered: 08/06/2007)
4 MOTION for Temporary Restraining Order DEFENDANT DOLLAR TREE STORES, INC.'S EX PARTE MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT; CERTIFICATE OF NOTIFICATION filed by Dollar Tree Stores, Inc.. (Attachments: # 1 Exhibit A# 2 Exhibit B)(Hernaez, Alex) (Filed on 8/6/2007) (Entered: 08/06/2007)
5 Declaration of MARK SODERHOLM in Support of 4 MOTION for Temporary Restraining Order DEFENDANT DOLLAR TREE STORES, INC.'S EX PARTE MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT; CERTIFICATE OF NOTIFICATION DECLARATION OF MARK SODERHOLM IN SUPPORT OF DEFENDANT'S EX PARTE MOTION FOR TEMPORARY RESTRAINING ORDER filed byDollar Tree Stores, Inc.. (Related document(s) 4 ) (Hernaez, Alex) (Filed on 8/6/2007) (Entered: 08/06/2007)
6 Proposed Order re 4 MOTION for Temporary Restraining Order DEFENDANT DOLLAR TREE STORES, INC.'S EX PARTE MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT; CERTIFICATE OF NOTIFICATION [PROPOSED] TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE RE PRELIMINARY INJUNCTION by Dollar Tree Stores, Inc.. (Hernaez, Alex) (Filed on 8/6/2007) (Entered: 08/06/2007)
7 NOTICE by Dollar Tree Stores, Inc. re 1 Notice of Removal NOTICE TO PLAINTIFF OF REMOVAL OF ACTION (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3)(Hernaez, Alex) (Filed on 8/7/2007) (Entered: 08/07/2007)
8 CLERK'S NOTICE of Impending Reassignment to U.S. District Judge. (slh, COURT STAFF) (Filed on 8/7/2007) (Entered: 08/07/2007)
9 ORDER REASSIGNING CASE. Case reassigned to Judge Phyllis J. Hamilton for all further proceedings. Judge Edward M. Chen no longer assigned to the case.. Signed by Executive Committee on 8/7/07. (as, COURT STAFF) (Filed on 8/7/2007) (Entered: 08/07/2007)
10 Minute Entry: Motion Hearing held on 8/8/2007 before Phyllis J. Hamilton (Date Filed: 8/8/2007) re 4 MOTION for Temporary Restraining Order DEFENDANT DOLLAR TREE STORES, INC.'S EX PARTE MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT; CERTIFICATE OF NOTIFICATION filed by Dollar Tree Stores, Inc. (Court Reporter Sahar McVickar.) (aaa, Court Staff) (Date Filed: 8/8/2007) (Entered: 08/08/2007)
11 Letter from Ramon Ramirez to Maureen E. McClain, Esq.. (Cole, Scott) (Filed on 8/8/2007) (Entered: 08/08/2007)
12 ORDER SETTING CASE MANAGEMENT CONFERENCE. Signed by Judge Phyllis J. Hamilton on 8/9/07. (nah, COURT STAFF) (Filed on 8/9/2007) (Entered: 08/09/2007)
Set Deadlines/Hearings: Case Management Statement due by 11/8/2007. Case Management Conference set for 11/15/2007 02:30 PM. (nah, COURT STAFF) (Filed on 8/9/2007) (Entered: 08/09/2007)
13 ORDER by Judge Hamilton 4 (pjhlc2, COURT STAFF) (Filed on 8/10/2007) (Entered: 08/10/2007)
14 ANSWER to 1 Complaint by Dollar Tree Stores, Inc. (McClain, Maureen) (Filed on 8/10/2007) Modified on 8/13/2007 (far, COURT STAFF). (Entered: 08/10/2007)
15 MOTION for leave to appear in Pro Hac Vice of Beth Hirsch Berman ( Filing fee $ 210, receipt number 34611009346) filed by Dollar Tree Stores, Inc. (far, COURT STAFF) (Filed on 8/13/2007) Additional attachment(s) added on 8/14/2007 (far,

Case: 3:07-cv-04012-SC As of: 07/27/2011 02:39 PM PDT 5 of 33

08/13/2007 08/13/2007
08/14/2007
08/23/2007 08/23/2007 08/30/2007 08/31/2007 08/31/2007 08/31/2007 08/31/2007
08/31/2007 10/03/2007 10/24/2007 11/09/2007 11/09/2007 11/09/2007 11/13/2007 11/15/2007 11/15/2007

COURT STAFF). (Entered: 08/13/2007)
Received Order re 15 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 210, receipt number 3461100934.) by Dollar Tree Stores, Inc.. (far, COURT STAFF) (Filed on 8/13/2007) (Entered: 08/13/2007)
16 CERTIFICATE OF SERVICE by Dollar Tree Stores, Inc. re 15 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 210, receipt number 3461100934.), Received Order (far, COURT STAFF) (Filed on 8/13/2007) Additional attachment(s) added on 8/14/2007 (far, COURT STAFF). (Entered: 08/13/2007)
17 ORDER GRANTING APPLICATION FOR ADMISSION OF ATTORNEY PRO HAC VICE by Judge Phyllis J. Hamilton granting 15 Motion for Pro Hac Vice for Beth Hirsch Berman. (nah, COURT STAFF) (Filed on 8/14/2007) (Entered: 08/14/2007)
18 ADR Certification (ADR L.R. 3−5b) of discussion of ADR options (Cole, Scott) (Filed on 8/23/2007) (Entered: 08/23/2007)
19 NOTICE of Appearance by Kevin Robert Allen (Allen, Kevin) (Filed on 8/23/2007) (Entered: 08/23/2007)
20 NOTICE by Robert Runnings Notice of Change of Counsel (Cole, Scott) (Filed on 8/30/2007) (Entered: 08/30/2007)
21 ORDER RELATING THIS CASE TO C−07−2050.. Signed by Judge Samuel Conti on 8/30/07. (tdm, COURT STAFF) (Filed on 8/31/2007) (Entered: 08/31/2007)
22 CLERK'S NOTICE Case Management Conference set for 11/16/2007 10:00 AM. (tdm, COURT STAFF) (Filed on 8/31/2007) (Entered: 08/31/2007)
Case reassigned to Judge Samuel Conti. Judge Phyllis J. Hamilton no longer assigned to the case. (ha, COURT STAFF) (Filed on 8/31/2007) (Entered: 08/31/2007)
23 *** FILED IN ERROR. PLEASE SEE DOCKET # 24 . *** ADR Certification (ADR L.R. 3−5b) of discussion of ADR options ADR Certification by Parties and Counsel (McClain, Maureen) (Filed on 8/31/2007) Modified on 8/31/2007 (ewn, COURT STAFF). (Entered: 08/31/2007)
24 ADR Certification (ADR L.R. 3−5b) of discussion of ADR options ADR Certification by Parties and Counsel (McClain, Maureen) (Filed on 8/31/2007) (Entered: 08/31/2007)
25 NOTICE of Appearance by Carrie S. Lin (Lin, Carrie) (Filed on 10/3/2007) (Entered: 10/03/2007)
26 NOTICE of need for ADR Phone Conference (ADR L.R. 3−5 d) (Hernaez, Alex) (Filed on 10/24/2007) (Entered: 10/24/2007)
27 ADR Clerks Notice Setting ADR Phone Conference on 11/14/07 at 9:30 a.m. Please take note that plaintiff's counsel initiates the call to all parties. (tjs, COURT STAFF) (Filed on 11/9/2007) (Entered: 11/09/2007)
28 REPORT of Rule 26(f) Planning Meeting. (Lin, Carrie) (Filed on 11/9/2007) (Entered: 11/09/2007)
29 JOINT CASE MANAGEMENT STATEMENT AND [PROPOSED] ORDER filed by Robert Runnings. (Lin, Carrie) (Filed on 11/9/2007) Modified on 11/13/2007 (aaa, Court Staff). (Entered: 11/09/2007)
ADR Remark: The ADR Phone Conference has been rescheduled to 11/15/07 at 11:00 a.m. (tjs, COURT STAFF) (Filed on 11/13/2007) (Entered: 11/13/2007)
ADR Remark: ADR Phone Conference conducted on 11/15/07 by HAH. (tjs, COURT STAFF) (Filed on 11/15/2007) (Entered: 11/15/2007)
30 NOTICE by Robert Runnings Notice of Unavailability (Lin, Carrie) (Filed on 11/15/2007) (Entered: 11/15/2007)

Case: 3:07-cv-04012-SC As of: 07/27/2011 02:39 PM PDT 6 of 33

11/15/2007 11/16/2007 11/20/2007 11/21/2007 11/27/2007 01/19/2008 01/19/2008
01/19/2008
01/19/2008
01/19/2008
01/19/2008
01/19/2008

31 NOTICE by Robert Runnings Notice of Unavailability (Cole, Scott) (Filed on 11/15/2007) (Entered: 11/15/2007)
32 Minute Entry: Case Management Conference held on 11/16/2007 before Judge Samuel Conti (Date Filed: 11/16/2007). (Court Reporter Bell Ball.) (tdm, COURT STAFF) (Date Filed: 11/16/2007) (Entered: 11/16/2007)
33 STIPULATION ANDN ORDER OF CONSOLIDATION. Signed by Judge Samuel Conti on 11/20/07. (tdm, COURT STAFF) (Filed on 11/20/2007) (Entered: 11/20/2007)
34 Proposed Order Stipulation and [Proposed] Order Extending Deadline to Hold an ENE Session and a Pre−Session Telephone Conference by Dollar Tree Stores, Inc.. (McClain, Maureen) (Filed on 11/21/2007) (Entered: 11/21/2007)
35 STIPULATION AND ORDER Extending Deadline to Hold an ENE Session and a Pre−Session Telephone Conference. Signed by Judge Samuel Conti on 11/26/07. (tdm, COURT STAFF) (Filed on 11/27/2007) (Entered: 11/27/2007)
36 MOTION for Summary Judgment DEFENDANT DOLLAR TREE STORES, INC.'S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT AS TO ROBERT RUNNINGS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF filed by Dollar Tree Stores, Inc.. (Hernaez, Alex) (Filed on 1/19/2008) (Entered: 01/19/2008)
37 Declaration of BETH HIRSCH BERMAN in Support of 36 MOTION for Summary Judgment DEFENDANT DOLLAR TREE STORES, INC.'S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT AS TO ROBERT RUNNINGS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF filed byDollar Tree Stores, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Related document(s) 36 ) (Hernaez, Alex) (Filed on 1/19/2008) (Entered: 01/19/2008)
38 Request for Judicial Notice re 36 MOTION for Summary Judgment DEFENDANT DOLLAR TREE STORES, INC.'S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT AS TO ROBERT RUNNINGS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF filed byDollar Tree Stores, Inc.. (Related document(s) 36 ) (Hernaez, Alex) (Filed on 1/19/2008) (Entered: 01/19/2008)
39 Declaration of CARLOS HERNANDEZ in Support of 36 MOTION for Summary Judgment DEFENDANT DOLLAR TREE STORES, INC.'S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT AS TO ROBERT RUNNINGS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF filed byDollar Tree Stores, Inc.. (Attachments: # 1 Exhibit 1 − 4, # 2 Exhibit 5 − 9, # 3 Exhibit 10 − 14)(Related document(s) 36 ) (Hernaez, Alex) (Filed on 1/19/2008) (Entered: 01/19/2008)
40 Declaration of PAULA BRADY in Support of 36 MOTION for Summary Judgment DEFENDANT DOLLAR TREE STORES, INC.'S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT AS TO ROBERT RUNNINGS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF filed byDollar Tree Stores, Inc.. (Related document(s) 36 ) (Hernaez, Alex) (Filed on 1/19/2008) (Entered: 01/19/2008)
41 Declaration of CHARLOTTA JACOBSON−ALLEN in Support of 36 MOTION for Summary Judgment DEFENDANT DOLLAR TREE STORES, INC.'S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT AS TO ROBERT RUNNINGS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF filed byDollar Tree Stores, Inc.. (Related document(s) 36 ) (Hernaez, Alex) (Filed on 1/19/2008) (Entered: 01/19/2008)
42 Proposed Order re 36 MOTION for Summary Judgment DEFENDANT DOLLAR TREE STORES, INC.'S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT AS TO ROBERT RUNNINGS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF by Dollar Tree Stores, Inc.. (Hernaez, Alex) (Filed on 1/19/2008) (Entered: 01/19/2008)

Case: 3:07-cv-04012-SC As of: 07/27/2011 02:39 PM PDT 7 of 33

02/13/2008 02/13/2008
02/14/2008 02/14/2008 02/14/2008 02/15/2008 02/29/2008 02/29/2008 02/29/2008 02/29/2008 02/29/2008 02/29/2008 03/10/2008 03/14/2008
03/14/2008 03/14/2008

43 MOTION Defendant's Administrative Motion to Establish Briefing Schedule Regarding Defendant's Motions for Summary Judgment; Declaration of Alex Hernaez in Support filed by Dollar Tree Stores, Inc.. (Hernaez, Alex) (Filed on 2/13/2008) (Entered: 02/13/2008)
44 Proposed Order re 43 MOTION Defendant's Administrative Motion to Establish Briefing Schedule Regarding Defendant's Motions for Summary Judgment; Declaration of Alex Hernaez in Support [Proposed] Order Granting Defendant's Administrative Motion to Establish Briefing Schedule Re Defendant's Motions for Summary Judgment by Dollar Tree Stores, Inc.. (Hernaez, Alex) (Filed on 2/13/2008) (Entered: 02/13/2008)
45 MOTION for Hearing or Teleconferance filed by Robert Runnings. (Lin, Carrie) (Filed on 2/14/2008) (Entered: 02/14/2008)
46 Declaration of Carrie S. Lin, Esq. Re 45 Motion filed byRobert Runnings. (Attachments: # 1 Exhibit)(Lin, Carrie) (Filed on 2/14/2008) Modified on 2/15/2008 (aaa, Court Staff). (Entered: 02/14/2008)
47 Proposed Order re 45 Motion by Robert Runnings. (Lin, Carrie) (Filed on 2/14/2008) Modified on 2/15/2008 (aaa, Court Staff). (Entered: 02/14/2008)
48 ORDER by Judge Samuel Conti granting 43 Motion Briefing Schedule (sclc2, COURT STAFF) (Filed on 2/15/2008) (Entered: 02/15/2008)
49 Memorandum in Opposition re 43 filed byRobert Runnings. (Lin, Carrie) (Filed on 2/29/2008) Modified on 3/3/2008 (aaa, Court Staff). (Entered: 02/29/2008)
50 DECLARATION of Carrie S. Lin, Esq. in Opposition to 49 Memorandum in Opposition filed byRobert Runnings. (Attachments: # 1 Exhibit A−G, # 2 Exhibit H−I)(Related document(s) 49 ) (Lin, Carrie) (Filed on 2/29/2008) (Entered: 02/29/2008)
51 DECLARATION of Robert Runnings in Opposition to 50 Declaration in Opposition, 49 Memorandum in Opposition filed byRobert Runnings. (Related document(s) 50 , 49 ) (Lin, Carrie) (Filed on 2/29/2008) (Entered: 02/29/2008)
52 OBJECTIONS to re 50 Declaration in Opposition, 51 Declaration in Opposition, 49 Memorandum in Opposition by Robert Runnings. (Lin, Carrie) (Filed on 2/29/2008) (Entered: 02/29/2008)
53 Request for Judicial Notice re 50 Declaration in Opposition, 51 Declaration in Opposition, 52 Objection, 49 Memorandum in Opposition filed byRobert Runnings. (Related document(s) 50 , 51 , 52 , 49 ) (Lin, Carrie) (Filed on 2/29/2008) (Entered: 02/29/2008)
54 Proposed Order re 53 Request for Judicial Notice, 50 Declaration in Opposition, 51 Declaration in Opposition, 52 Objection, 49 Memorandum in Opposition by Robert Runnings. (Lin, Carrie) (Filed on 2/29/2008) (Entered: 02/29/2008)
ADR Remark: ADR Phone Conference conducted on 3/10/08 by HAH. A further ADR Phone Conference is scheduled for 3/24/08 at 10:00 a.m. (tjs, COURT STAFF) (Filed on 3/10/2008) (Entered: 03/11/2008)
55 Reply to Opposition re 36 MOTION for Summary Judgment DEFENDANT DOLLAR TREE STORES, INC.'S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT AS TO ROBERT RUNNINGS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF Dollar Tree Stores, Inc.'s Reply to Plaintiff Robert Runnings Opposition to Motion for Summary Judgment filed byDollar Tree Stores, Inc.. (Hernaez, Alex) (Filed on 3/14/2008) (Entered: 03/14/2008)
56 OBJECTIONS to re 50 Declaration in Opposition Dollar Tree Stores, Inc.'s Objections to the Declaration of Robert Runnings by Dollar Tree Stores, Inc.. (Hernaez, Alex) (Filed on 3/14/2008) (Entered: 03/14/2008)
57 OBJECTIONS to re 52 Objection Memorandum in Opposition to Plaintiff's Objections to the Declarations of Charlotta Jacobson−Allen and Carlos Hernandez by Dollar Tree Stores, Inc.. (Hernaez, Alex) (Filed on 3/14/2008)

Case: 3:07-cv-04012-SC As of: 07/27/2011 02:39 PM PDT 8 of 33

03/14/2008 03/14/2008 03/14/2008 03/14/2008 03/14/2008 03/24/2008 04/07/2008 04/07/2008 04/08/2008 07/08/2008 07/09/2008 07/25/2008 07/30/2008 09/05/2008 09/05/2008 09/05/2008

(Entered: 03/14/2008)
58 MEMORANDUM in Opposition re 53 Request for Judicial Notice Dollar Tree Stores, Inc.'s Memorandum in Opposition to Plaintiff Robert Runnings Request for Judicial Notice filed byDollar Tree Stores, Inc.. (Related document(s) 53 ) (Hernaez, Alex) (Filed on 3/14/2008) (Entered: 03/14/2008)
59 Declaration in Support of 55 Reply to Opposition, Declaration of Mark Adams in Support of Dollar Tree Stores, Inc.'s Reply on Summary Judgment as to Robert Runnings filed byDollar Tree Stores, Inc.. (Related document(s) 55 ) (Hernaez, Alex) (Filed on 3/14/2008) (Entered: 03/14/2008)
60 Declaration in Support of 55 Reply to Opposition, Declaration of Patricia Doss in support of Dollar Tree Stores, Inc.'s Reply on Summary Judgment as to Robert Runnings (w/Exhs A−C) filed byDollar Tree Stores, Inc.. (Related document(s) 55 ) (Hernaez, Alex) (Filed on 3/14/2008) (Entered: 03/14/2008)
61 Declaration in Support of 55 Reply to Opposition, Supplemental Declaration of Beth Hirsch Berman in Support of Dollar Tree Stores, Inc.'s Reply on Summary Judgment as to Robert Runnings filed byDollar Tree Stores, Inc.. (Related document(s) 55 ) (Hernaez, Alex) (Filed on 3/14/2008) (Entered: 03/14/2008)
62 Declaration in Support of 55 Reply to Opposition, Declaration of Alex Hernaez in Support of Dollar Tree Stores, Inc.'s Reply on Summary Judgment as to Robert Runnings (w/Exh. A) filed byDollar Tree Stores, Inc.. (Related document(s) 55 ) (Hernaez, Alex) (Filed on 3/14/2008) (Entered: 03/14/2008)
ADR Remark: ADR Phone Conference conducted on 3/24/08 by HAH. A further ADR Phone Conference has been scheduled for 4/28/08 at 10:00 a.m. (tjs, COURT STAFF) (Filed on 3/24/2008) (Entered: 03/24/2008)
63 *** FILED IN ERROR. PLEASE REFER TO DOCUMENT 64 . *** STIPULATION by Robert Runnings. (Lin, Carrie) (Filed on 4/7/2008) Modified on 4/8/2008 (feriab, COURT STAFF). (Entered: 04/07/2008)
64 STIPULATION AND [PROPOSED] ORDER CORRECTION OF DOCKET # 63 by Robert Runnings. (Lin, Carrie) (Filed on 4/7/2008) Modified on 4/9/2008 (aaa, Court Staff). (Entered: 04/07/2008)
65 ORDER REMOVING CASE FROM Early Neutral Evaluation. Signed by Judge Samuel Conti on 4/8/08. (tdm, COURT STAFF) (Filed on 4/8/2008) (Entered: 04/08/2008)
66 ORDER by Judge Samuel Conti denying (48) Motion for Summary Judgment in case 3:07−cv−02050−SC; denying (36) Motion for Summary Judgment in case 3:07−cv−04012−SC (sclc2, COURT STAFF) (Filed on 7/8/2008) (Entered: 07/08/2008)
Status Conference set for 8/1/2008 10:00 AM. (tdm, COURT STAFF) (Filed on 7/9/2008) (Entered: 07/09/2008)
67 JOINT CASE MANAGEMENT STATEMENT SUPPLEMENTAL JOINT CASE MANAGEMENT STATUS CONFERENCE STATEMENT filed by Dollar Tree Stores, Inc.. (McClain, Maureen) (Filed on 7/25/2008) (Entered: 07/25/2008)
68 CLERK'S NOTICE Case Management Conference set for 8/1/08 is continued to 12/5/2008 10:00 AM. (tdm, COURT STAFF) (Filed on 7/30/2008) (Entered: 07/30/2008)
69 MOTION to Compel filed by Robert Runnings. Motion Hearing set for 10/10/2008 10:00 AM in Courtroom 1, 17th Floor, San Francisco. (Lin, Carrie) (Filed on 9/5/2008) (Entered: 09/05/2008)
70 Declaration of Carrie S. Lin, Esq. in Support of 69 MOTION to Compel filed byRobert Runnings. (Related document(s) 69 ) (Lin, Carrie) (Filed on 9/5/2008) (Entered: 09/05/2008)
71 Proposed Order by Robert Runnings. (Lin, Carrie) (Filed on 9/5/2008) (Entered: 09/05/2008)

Case: 3:07-cv-04012-SC As of: 07/27/2011 02:39 PM PDT 9 of 33

09/08/2008 09/08/2008 09/16/2008
09/19/2008
09/19/2008
09/19/2008
09/26/2008 10/10/2008
10/10/2008
10/10/2008 10/15/2008 10/16/2008 10/16/2008 10/16/2008 10/16/2008 10/16/2008 11/03/2008

72 ORDER REFERRING CASE to Magistrate Judge for Discovery purposes. Signed by Judge Samuel Conti on 9/8/08. (tdm, COURT STAFF) (Filed on 9/8/2008) (Entered: 09/08/2008)
CASE REFERRED to Magistrate Judge Joseph C. Spero for Discovery (cmw, COURT STAFF) (Filed on 9/8/2008) (Entered: 09/08/2008)
73 Notice of Reference and ORDER Re Discovery Procedures Motion Hearing set for 10/10/2008 09:30 AM in Courtroom A, 15th Floor, San Francisco.. Signed by Judge Joseph C. Spero on 9/16/08. (fj, COURT STAFF) (Filed on 9/16/2008) (Entered: 09/16/2008)
74 Memorandum in Opposition re 69 MOTION to Compel DEFENDANT'S OPPOSITION TO PLAINTIFFS' MOTION TO COMPEL RESPONSES TO PLAINTIFFS' SPECIAL INTERROGATORY NO. 1 filed byDollar Tree Stores, Inc.. (Eltanal, Rossana) (Filed on 9/19/2008) (Entered: 09/19/2008)
75 Declaration of MAUREEN E. McCLAIN in Support of 74 Memorandum in Opposition, DECLARATION OF MAUREEN E. MCCLAIN IN SUPPORT OF DEFENDANT'S OPPOSITION TO PLAINTIFFS' MOTION TO COMPEL RESPONSES TO PLAINTIFFS' SPECIAL INTERROGATORY NO. 1 and EXHIBITS 1 THROUGH 4 filed byDollar Tree Stores, Inc.. (Related document(s) 74 ) (Eltanal, Rossana) (Filed on 9/19/2008) (Entered: 09/19/2008)
76 Proposed Order re 74 Memorandum in Opposition, [PROPOSED] ORDER DENYING PLAINTIFFS' MOTION TO COMPEL RESPONSES TO PLAINTIFFS' SPECIAL INTERROGATORY NO. 1 by Dollar Tree Stores, Inc.. (Eltanal, Rossana) (Filed on 9/19/2008) (Entered: 09/19/2008)
77 REPLY to Response to 69 Motion to Compel Responses to Plaintiffs' Special Interrogatory No. 1 filed byRobert Runnings. (Lin, Carrie) (Filed on 9/26/2008) Modified on 9/29/2008 (aaa, Court Staff). (Entered: 09/26/2008)
78 Minute Entry: Motion Hearing held on 10/10/2008 before Magistrate Judge Joseph C. Spero (Date Filed: 10/10/2008); re 69 MOTION to Compel filed by Robert Runnings. (Court Reporter Kathy Wyatt; 9:31−9:43) (ls, COURT STAFF) (Date Filed: 10/10/2008) (Entered: 10/10/2008)
79 ORDER GRANTING IN PART AND DENYING MOTION TO COMPEL RESPONSES TO PLAINTIFFS' SPECIAL INTERROGATORY NO. 1; re 69 MOTION to Compel filed by Robert Runnings. Signed by Hon. Joseph C. Spero on 10/10/2008. (ls, COURT STAFF) (Filed on 10/10/2008) (Entered: 10/10/2008)
80 Letter from Carrie Lin and Maureen McClain. (Lin, Carrie) (Filed on 10/10/2008) (Entered: 10/10/2008)
81 ORDER REAFFIRMING CLERK'S NOTICE OF JULY 30, 2008 re (80 in 3:07−cv−04012−SC) Joint Letter. Signed by Judge Samuel Conti on 10/15/08. (tdm, COURT STAFF) (Filed on 10/15/2008) (Entered: 10/15/2008)
82 NOTICE of Change In Counsel by Matthew Roland Bainer (Bainer, Matthew) (Filed on 10/16/2008) (Entered: 10/16/2008)
83 NOTICE of Appearance by Matthew Roland Bainer (Bainer, Matthew) (Filed on 10/16/2008) (Entered: 10/16/2008)
84 OBJECTIONS to Dckt. No. 79 by Robert Runnings. (Bissen, Eileen) (Filed on 10/16/2008) Modified on 10/17/2008 (aaa, Court Staff). (Entered: 10/16/2008)
85 Declaration of Eileen M. Bissen, Esq. in Support of 84 Objection filed byRobert Runnings. (Related document(s) 84 ) (Bissen, Eileen) (Filed on 10/16/2008) (Entered: 10/16/2008)
86 Proposed Order re 84 by Robert Runnings. (Bissen, Eileen) (Filed on 10/16/2008) Modified on 10/17/2008 (aaa, Court Staff). (Entered: 10/16/2008)
87 ORDER Overruling Plaintiff's Objections to Magistrate Judge's Order (sclc2, COURT STAFF) (Filed on 11/3/2008) (Entered: 11/03/2008)

Case: 3:07-cv-04012-SC As of: 07/27/2011 02:39 PM PDT 10 of 33

11/03/2008 11/03/2008 11/03/2008 11/06/2008
11/06/2008
11/06/2008
11/06/2008 11/11/2008 11/12/2008 11/12/2008 11/12/2008 11/12/2008 11/12/2008 12/05/2008 12/05/2008 12/05/2008

88 Ex Parte Application filed by Robert Runnings. (Bissen, Eileen) (Filed on 11/3/2008) (Entered: 11/03/2008)
89 Declaration of EILEEN M. BISSEN in Support of 88 Ex Parte Application filed byRobert Runnings. (Related document(s) 88 ) (Bissen, Eileen) (Filed on 11/3/2008) (Entered: 11/03/2008)
90 Proposed Order re 88 Ex Parte Application, 89 Declaration in Support EX PARTE APPLICATION by Robert Runnings. (Bissen, Eileen) (Filed on 11/3/2008) (Entered: 11/03/2008)
91 Memorandum in Opposition re 88 Ex Parte Application DEFENDANT DOLLAR TREE'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PLAINTIFF'S EX PARTE APPLICATION TO ENLARGE TIME FOR CLASS CERTIFICATION MOTION filed byDollar Tree Stores, Inc.. (Links, Robert) (Filed on 11/6/2008) (Entered: 11/06/2008)
92 DECLARATION of MAUREEN E. MCCLAIN in Opposition to 88 Ex Parte Application DECLARATION OF MAUREEN E. MCCLAIN IN OPPOSITION TO PLAINTIFF'S EX PARTE APPLICATION TO ENLARGE TIME FOR CLASS CERTIFICATION MOTION filed byDollar Tree Stores, Inc.. (Attachments: # 1 Exhibit Exhibits 1−2, # 2 Exhibit Exhibits 3−4, # 3 Exhibit Exhibit 5, # 4 Exhibit Exhibits 6−10)(Related document(s) 88 ) (Links, Robert) (Filed on 11/6/2008) (Entered: 11/06/2008)
93 DECLARATION of ROBERT D. LINKS in Opposition to 88 Ex Parte Application DECLARATION OF ROBERT D. LINKS IN OPPOSITION TO PLAINTIFF'S EX PARTE APPLICATION TO ENLARGE TIME FOR CLASS CERTIFICATION MOTION filed byDollar Tree Stores, Inc.. (Attachments: # 1 Exhibit Exhibits 1−5, # 2 Exhibit Exhibits 6−11)(Related document(s) 88 ) (Links, Robert) (Filed on 11/6/2008) (Entered: 11/06/2008)
94 Proposed Order re 88 Ex Parte Application [PROPOSED] ORDER DENYING PLAINTIFF'S EX PARTE APPLICATION TO ENLARGE TIME FOR CLASS CERTIFICATION MOTION by Dollar Tree Stores, Inc.. (Links, Robert) (Filed on 11/6/2008) (Entered: 11/06/2008)
95 Letter from counsel. (Bissen, Eileen) (Filed on 11/11/2008) (Entered: 11/11/2008)
96 REPLY to 91 Response to Motion To Enlarge Time for Class Certification filed byRobert Runnings. (Bissen, Eileen) (Filed on 11/12/2008) Modified on 11/13/2008 (aaa, Court Staff). (Entered: 11/12/2008)
97 Declaration of Lethea Warren filed byRobert Runnings. (Bissen, Eileen) (Filed on 11/12/2008) (Entered: 11/12/2008)
98 Declaration of Eileen Bissen filed byRobert Runnings. (Bissen, Eileen) (Filed on 11/12/2008) (Entered: 11/12/2008)
99 EXHIBITS re 98 Declaration in Support of Ex Parte Application to Enlarge Time for Class Certification filed byRobert Runnings. (Attachments: # 1 Exhibit Exhibit to Declaration of Eileen Bissen)(Related document(s) 98 ) (Bissen, Eileen) (Filed on 11/12/2008) (Entered: 11/12/2008)
100 ORDER by Judge Samuel Conti granting 88 Ex Parte Application (sclc2, COURT STAFF) (Filed on 11/12/2008) (Entered: 11/12/2008)
101 ORDER TO SHOW CAUSE Order to Show Cause Hearing set for 12/12/2008 10:00 AM. Show Cause Response due by 12/10/2008.. Signed by Judge Samuel Conti on 12/5/08. (tdm, COURT STAFF) (Filed on 12/5/2008) (Entered: 12/05/2008)
102 ORDER WITHDRAWING ORDER TO SHOW CAUSE. Signed by Judge Samuel Conti on 12/5/08. (sclc1, COURT STAFF) (Filed on 12/5/2008) (Entered: 12/05/2008)
103 Minute Entry: Status Conference (Date Filed: 12/5/2008). (Court Reporter Jim Yeomans.) (tdm, COURT STAFF) (Date Filed: 12/5/2008) (Entered: 12/05/2008)

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12/18/2008 01/02/2009 01/07/2009 01/09/2009 01/13/2009 01/16/2009 01/16/2009 02/09/2009 02/20/2009 02/24/2009 02/27/2009
02/27/2009
02/27/2009 02/27/2009
02/27/2009 03/02/2009 03/04/2009
03/09/2009

104 NOTICE by Robert Runnings of Unavailability (Bainer, Matthew) (Filed on 12/18/2008) (Entered: 12/18/2008)
105 NOTICE of Substitution of Counsel by Maureen E. McClain (McClain, Maureen) (Filed on 1/2/2009) (Entered: 01/02/2009)
106 ORDER Granting Substitution of Counsel for Defendant Dollar Tree Stores (tdm, COURT STAFF) (Filed on 1/7/2009) (Entered: 01/07/2009)
107 NOTICE of Change of Address by Maureen E. McClain (McClain, Maureen) (Filed on 1/9/2009) (Entered: 01/09/2009)
108 Letter from Eileen M. Bissen, Esq.. (Bissen, Eileen) (Filed on 1/13/2009) (Entered: 01/13/2009)
109 Minute Entry: TelephonicDiscovery Hearing held on 1/16/2009 before Joseph C. Spero re: Docket Nos. 95 and 108. (Tape #FTR 3:00 to 3:05.) (klh, COURT STAFF) (Date Filed: 1/16/2009) (Entered: 01/16/2009)
110 AMENDE DMinute Entry: TelephonicDiscovery Hearing held on 1/16/2009 before Joseph C. Spero. (Tape #FTR 3:00 to 3:05.) (klh, COURT STAFF) (Date Filed: 1/16/2009) (Entered: 01/16/2009)
111 NOTICE of Appearance by Rosa I. Vigil (Vigil, Rosa) (Filed on 2/9/2009) (Entered: 02/09/2009)
112 Letter from Krista S. Johnson re: Meet and Confer. (Johnson, Krista) (Filed on 2/20/2009) (Entered: 02/20/2009)
113 Letter from Scott Cole, Esq.. (Cole, Scott) (Filed on 2/24/2009) (Entered: 02/24/2009)
114 Declaration of Matthew R. Bainer, Esq. IN SUPPORT OF PLAINTIFFS ADMINISTRATIVE MOTION TO FILE UNDER SEAL MATERIALS IN CONNECTION WITH PLAINTIFFS MOTION FOR CLASS CERTIFICATION filed byRobert Runnings. (Bainer, Matthew) (Filed on 2/27/2009) (Entered: 02/27/2009)
115 Proposed Order ADOPTING PLAINTIFFS ADMINISTRATIVE MOTION TO FILE UNDER SEAL MATERIALS IN CONNECTION WITH PLAINTIFFS MOTION FOR CLASS CERTIFICATION by Robert Runnings. (Bainer, Matthew) (Filed on 2/27/2009) (Entered: 02/27/2009)
116 AFFIDAVIT Proof Of Service by Robert Runnings. (Bainer, Matthew) (Filed on 2/27/2009) (Entered: 02/27/2009)
117 Minute Entry: TelephonicDiscovery Hearing NOT held on 2/27/2009 before Joseph C. Spero. Parties advised Court that they have resolved their discovery issue.(Tape #Not Reported.) (klh, COURT STAFF) (Date Filed: 2/27/2009) (Entered: 02/27/2009)
118 STIPULATION OF PARTIES REGARDING DISCOVERY HEARING by Dollar Tree Stores, Inc.. (Johnson, Krista) (Filed on 2/27/2009) (Entered: 02/27/2009)
119 STIPULATION AND ORDER OF PARTIES REGARDING DISCOVERY HEARING. Signed by Judge Joseph C. Spero on 03/02/09. (klh, COURT STAFF) (Filed on 3/2/2009) (Entered: 03/02/2009)
120 Declaration of KRISTA S. JOHNSON PURSUANT TO CIVIL LOCAL RULE 79−5 SUPPORTING THE CONFIDENTIALITY OF DOCUMENTS FILED UNDER SEAL WITH PLAINTIFFS' MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF CLASS CERTIFICATION; PROPOSED ORDER filed byDollar Tree Stores, Inc.. (Johnson, Krista) (Filed on 3/4/2009) (Entered: 03/04/2009)
121 ORDER denying administrative motion to file under seal materials in connection with Plaintiffs' motion for class certification (sclc2, COURT STAFF) (Filed on 3/9/2009) (Entered: 03/09/2009)

Case: 3:07-cv-04012-SC As of: 07/27/2011 02:39 PM PDT 12 of 33

03/10/2009 03/25/2009 03/25/2009 03/25/2009 03/25/2009
03/25/2009 03/25/2009
03/26/2009 03/26/2009 03/30/2009 04/01/2009 04/02/2009 04/02/2009 04/10/2009

122 CLERKS NOTICE taking the April 3, 2009 Case Management Conference off calendar. (tdm, COURT STAFF) (Filed on 3/10/2009) (Entered: 03/10/2009)
123 NOTICE of Appearance by Molly Ann Kuehn (Kuehn, Molly) (Filed on 3/25/2009) (Entered: 03/25/2009)
124 Amended MOTION to Certify Class filed by Robert Runnings. Motion Hearing set for 5/1/2009 10:00 AM in Courtroom 1, 17th Floor, San Francisco. (Cole, Scott) (Filed on 3/25/2009) (Entered: 03/25/2009)
125 Proposed Order Granting Representative Plaintiffs' 124 Amended Motion for Class Certification by Robert Runnings. (Cole, Scott) (Filed on 3/25/2009) Modified on 3/26/2009 (aaa, Court Staff). (Entered: 03/25/2009)
126 Declaration of Scott Edward Cole in Support of Representative Plaintiffs' 124 Amended Motion for Class Certification filed byRobert Runnings. (Attachments: # 1 Exhibit A − B, # 2 Exhibit C − E, # 3 Exhibit F, # 4 Exhibit G (1 of 2), # 5 Exhibit G (2 of 2), # 6 Exhibit H − J, # 7 Exhibit K, # 8 Exhibit L (1 of 3), # 9 Exhibit L (2 of 3), # 10 Exhibit L (3 of 3), # 11 Exhibit (1of 2), # 12 Exhibit M (2 of 2), # 13 Exhibit N, # 14 Exhibit O (1 of 4), # 15 Exhibit O (2 of 4), # 16 Exhibit O (3 of 4), # 17 Exhibit O (4 of 4), # 18 Exhibit P − Q)(Cole, Scott) (Filed on 3/25/2009) Modified on 3/26/2009 (aaa, Court Staff). (Entered: 03/25/2009)
127 Appendix Amended Compendium of Authorities in Support of Plaintiffs' 124 Amended Motion for Class Certification filed byRobert Runnings. (Attachments: # 1 Exhibit A − E, # 2 Exhibit F − I, # 3 Exhibit J −K)(Cole, Scott) (Filed on 3/25/2009) Modified on 3/26/2009 (aaa, Court Staff). (Entered: 03/25/2009)
128 Declaration of Molly A. Kuehn in Support of Representative Plaintiffs' 124 Amended Motion for Class Certification filed byRobert Runnings. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P − II)(Kuehn, Molly) (Filed on 3/25/2009) Modified on 3/26/2009 (aaa, Court Staff). (Entered: 03/25/2009)
129 Declaration of David E. Hensley In Support of Defendant's Sealing Request Pursuant to Civil Local Rule 79−5 Re Information Concerning The Class Certification Motion filed byDollar Tree Stores, Inc.. (McClain, Maureen) (Filed on 3/26/2009) (Entered: 03/26/2009)
130 Proposed Order Permitting Confidential Documents Submitted Re Plaintiffs' Motion for Calss Certification To Be Filed Under Seal (Civil Local Rule 79−5) by Dollar Tree Stores, Inc.. (McClain, Maureen) (Filed on 3/26/2009) (Entered: 03/26/2009)
131 ORDER permitting documents to be filed under seal (sclc2, COURT STAFF) (Filed on 3/30/2009) (Entered: 03/30/2009)
132 ORDER denying request for amended administrative motion to be filed under seal (sclc2, COURT STAFF) (Filed on 4/1/2009) (Entered: 04/01/2009)
133 Amended MOTION to Seal Document 126 Declaration in Support,, filed by Robert Runnings. Motion Hearing set for 5/1/2009 10:00 AM in Courtroom 1, 17th Floor, San Francisco. (Kuehn, Molly) (Filed on 4/2/2009) (Entered: 04/02/2009)
134 Declaration of Molly A. Kuehn in Support of 133 Amended MOTION to Seal Document 126 Declaration in Support,, filed byRobert Runnings. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Related document(s) 133 ) (Kuehn, Molly) (Filed on 4/2/2009) (Entered: 04/02/2009)
135 *** FILED IN ERROR. PLEASE SEE DOCKET # 156 . *** MOTION to Seal Defendant's Dollar Tree Stores, Inc.'s Motion for Administrative Relief to File Under Seal filed by Dollar Tree Stores, Inc.. Motion Hearing set for 5/1/2009 10:00 AM in Courtroom 2, 17th Floor, San Francisco. (Eltanal, Rossana) (Filed on 4/10/2009) Modified on 4/13/2009 (ewn, COURT STAFF). (Entered: 04/10/2009)

Case: 3:07-cv-04012-SC As of: 07/27/2011 02:39 PM PDT 13 of 33

04/10/2009 04/10/2009 04/10/2009 04/10/2009 04/10/2009 04/10/2009 04/10/2009 04/10/2009 04/10/2009 04/10/2009 04/10/2009
04/10/2009

136 Proposed Order re 135 MOTION to Seal Defendant's Dollar Tree Stores, Inc.'s Motion for Administrative Relief to File Under Seal [PROPOSED] ORDER GRANTING DEFENDANT DOLLAR TREE STORES, INC.S ADMINISTRATIVE MOTION TO FILE UNDER SEAL by Dollar Tree Stores, Inc.. (Eltanal, Rossana) (Filed on 4/10/2009) (Entered: 04/10/2009)
137 DECLARATION of Charlotta Jacobson−Allen DECLARATION OF CHARLOTTA JACOBSON−ALLEN IN SUPPORT OF DOLLAR TREE STORES, INC.S 151 OPPOSITION TO PLAINTIFFS MOTION FOR CLASS CERTIFICATION filed byDollar Tree Stores, Inc.. (Eltanal, Rossana) (Filed on 4/10/2009) Modified on 4/13/2009 (aaa, Court Staff). (Entered: 04/10/2009)
138 DECLARATION Defendant Dollar Tree's Store Manager Declarations and Summary of Store Manager Declarations ISO of Opposition to Plaintiffs' Motion for Class Certification filed byDollar Tree Stores, Inc.. (Attachments: # 1 Exhibit Exhibits 1−5, # 2 Exhibit Exhibits 6−10, # 3 Exhibit Exhibits 11−15, # 4 Exhibit Exhibits 16−20)(Eltanal, Rossana) (Filed on 4/10/2009) (Entered: 04/10/2009)
139 CERTIFICATE OF SERVICE by Dollar Tree Stores, Inc. re 137 Declaration in Opposition, 138 Declaration in Opposition, Proof of Service by Hand Delivery (Eltanal, Rossana) (Filed on 4/10/2009) (Entered: 04/10/2009)
140 DECLARATION of Candace Camp In Support of Dollar Tree Stores, Inc.'s 151 Opposition to Plaintiffs' Motion for Class Certification filed byDollar Tree Stores, Inc.. (Eltanal, Rossana) (Filed on 4/10/2009) Modified on 4/13/2009 (aaa, Court Staff). (Entered: 04/10/2009)
141 DECLARATION of Kristy Curr In Support Of Dollar Tree Stores, Inc.'s 151 Opposition to Plaintiffs' Motion for Class Certification filed byDollar Tree Stores, Inc.. (Eltanal, Rossana) (Filed on 4/10/2009) Modified on 4/13/2009 (aaa, Court Staff). (Entered: 04/10/2009)
142 DECLARATION of Patricia E. Doss In Support Of Dollar Tree Stores, Inc.'s 151 Opposition to Plaintiffs' Motion For Class Certification filed byDollar Tree Stores, Inc.. (Eltanal, Rossana) (Filed on 4/10/2009) Modified on 4/13/2009 (aaa, Court Staff). (Entered: 04/10/2009)
143 DECLARATION of Maureen McClain In Support Of Dollar Tree Stores, Inc.'s 151 Opposition to Plaintiffs' Motion for Class Certification filed byDollar Tree Stores, Inc.. (Attachments: # 1 Exhibit Exs. A−H, # 2 Exhibit Exs. I−K, # 3 Exhibit Exs. L−O)(Eltanal, Rossana) (Filed on 4/10/2009) Modified on 4/13/2009 (aaa, Court Staff). (Entered: 04/10/2009)
144 DECLARATION of David McDearmon re 151 Opposition filed byDollar Tree Stores, Inc.. (Attachments: # 1 Exhibit Ex. A, # 2 Exhibit Exs. B−D, # 3 Errata Exs. E−G)(Eltanal, Rossana) (Filed on 4/10/2009) Modified on 4/13/2009 (aaa, Court Staff). (Entered: 04/10/2009)
145 DECLARATION of Steven Pearson In Support Of Dollar Tree Stores, Inc.'s 151 Opposition to Plaintiffs' Motion for Class Certification filed byDollar Tree Stores, Inc.. (Eltanal, Rossana) (Filed on 4/10/2009) Modified on 4/13/2009 (aaa, Court Staff). (Entered: 04/10/2009)
146 DECLARATION of Rossana S. Eltanal In Support Of Dollar Tree Stores, Inc.'s 151 Opposition to Plaintiffs' Motion for Class Certification filed byDollar Tree Stores, Inc.. (Attachments: # 1 Exhibit Ex. A Part 1, # 2 Exhibit Ex. A Part 2, # 3 Exhibit Ex. A Part 3, # 4 Exhibit Ex. A Part 4, # 5 Exhibit Ex. A Part 5, # 6 Exhibit Ex. A Part 6, # 7 Exhibit Ex. A Part 7, # 8 Exhibit Ex. A Part 8, # 9 Exhibit Ex. B, # 10 Exhibit Ex. C, # 11 Exhibit Ex. D, # 12 Exhibit Ex. E, # 13 Exhibit Ex. F, # 14 Exhibit Ex. G, # 15 Exhibit Ex. H, # 16 Exhibit Ex. I, # 17 Exhibit Ex. J Part 1, # 18 Exhibit Ex. J Part 2, # 19 Exhibit Ex. K)(Eltanal, Rossana) (Filed on 4/10/2009) Modified on 4/13/2009 (aaa, Court Staff). (Entered: 04/10/2009)
147 DECLARATION of Pam Wolpa In Support Of Dollar Tree Stores, Inc.'s 151 Opposition to Plaintiffs' Motion for Class Certification and Exs A−C filed byDollar Tree Stores, Inc.. (Attachments: # 1 Exhibit Exs. D−H)(Eltanal, Rossana) (Filed on 4/10/2009) Modified on 4/13/2009 (aaa, Court Staff). (Entered: 04/10/2009)

Case: 3:07-cv-04012-SC As of: 07/27/2011 02:39 PM PDT 14 of 33

04/10/2009 04/10/2009 04/10/2009 04/10/2009 04/10/2009 04/10/2009 04/10/2009 04/10/2009
04/10/2009 04/10/2009 04/10/2009 04/13/2009

148 Appendix Summary Of Store Manager Deposition Testimony in Support of Defendant Dollar Tree's 151 Opposition to Plaintiffs' Motion for Class Certification filed byDollar Tree Stores, Inc.. (Eltanal, Rossana) (Filed on 4/10/2009) Modified on 4/13/2009 (aaa, Court Staff). (Entered: 04/10/2009)
149 OBJECTIONS to Evidentiary Objections in Support of Defendant Dollar Tree Stores, Inc.'s 151 Opposition to Plaintiffs' Motion for Class Certification by Dollar Tree Stores, Inc.. (Eltanal, Rossana) (Filed on 4/10/2009) Modified on 4/13/2009 (aaa, Court Staff). (Entered: 04/10/2009)
150 Request for Judicial Notice In Support Of 151 Opposition To Plaintiffs' Motion for Class Certification filed byDollar Tree Stores, Inc.. (Attachments: # 1 Exhibit Exs A−D, # 2 Exhibit Exs. E−I, # 3 Exhibit Exs. J−M, # 4 Exhibit Exs. N−Q)(Eltanal, Rossana) (Filed on 4/10/2009) Modified on 4/13/2009 (aaa, Court Staff). (Entered: 04/10/2009)
151 Memorandum in Opposition Defendant Dollar Tree Stores, Inc.'s Memorandum of Points and Authorities in Opposition to Plaintiffs' 126 Motion for Class Certification filed byDollar Tree Stores, Inc.. (Eltanal, Rossana) (Filed on 4/10/2009) Modified on 4/13/2009 (aaa, Court Staff). (Entered: 04/10/2009)
152 Proposed Order re 151 Memorandum in Opposition Denying Plaintiffs' Motion for Class Certification by Dollar Tree Stores, Inc.. (Eltanal, Rossana) (Filed on 4/10/2009) (Entered: 04/10/2009)
153 Proposed Order re 150 Request for Judicial Notice, Granting Defendant's Request for Judicial Notice by Dollar Tree Stores, Inc.. (Eltanal, Rossana) (Filed on 4/10/2009) (Entered: 04/10/2009)
154 Proposed Order re 149 Objection Granting Defendant's Evidentiary Objections by Dollar Tree Stores, Inc.. (Eltanal, Rossana) (Filed on 4/10/2009) (Entered: 04/10/2009)
155 Appendix re 144 Declaration in Opposition, 152 Proposed Order, 142 Declaration in Opposition, 141 Declaration in Opposition, 137 Declaration in Opposition, 153 Proposed Order, 136 Proposed Order, 150 Request for Judicial Notice, 148 Appendix, 146 Declaration in Opposition,, 147 Declaration in Opposition, 135 MOTION to Seal Defendant's Dollar Tree Stores, Inc.'s Motion for Administrative Relief to File Under Seal, 151 Memorandum in Opposition, 140 Declaration in Opposition, 143 Declaration in Opposition, 149 Objection, 145 Declaration in Opposition, 138 Declaration in Opposition, 154 Proposed Order COMPENDIUM OF DOCUMENTS FILED BY DEFENDANT DOLLAR TREE STORES, INC.'S IN OPPOSITION TO PLAINTIFFS' MOTION FOR CLASS CERTIFICATION filed byDollar Tree Stores, Inc.. (Related document(s) 144 , 152 , 142 , 141 , 137 , 153 , 136 , 150 , 148 , 146 , 147 , 135 , 151 , 140 , 143 , 149 , 145 , 138 , 154 ) (Eltanal, Rossana) (Filed on 4/10/2009) (Entered: 04/10/2009)
156 MOTION to Seal Defendant's Dollar Tree Stores, Inc.'s Motion fof Administrative Relief to File Under Seal filed by Dollar Tree Stores, Inc.. Motion Hearing set for 5/1/2009 10:00 AM in Courtroom 2, 17th Floor, San Francisco. (Eltanal, Rossana) (Filed on 4/10/2009) (Entered: 04/10/2009)
160 DECLARATION OF CHARLOTTA JACOBSON−ALLEN IN SUPPORT OF DOLLAR TREE STORES, INC.'S OPPOSITION TO PLAINTIFFS' MOTION FOR CLASS CERTIFICATION AND EXHIBITS filed byDollar Tree Stores, Inc. Re 159 Order. FILED UNDER SEAL (aaa, COURT STAFF) (Filed on 4/10/2009) (Entered: 04/17/2009)
161 DEFENDANT DOLLAR TREE'S STORE MANAGER DECLARATIONS AND SUMMARY OF STORE MANAGER DECLARATIONS IN SUPPORT OF OPPOSITION TO PLAINTIFFS' MOTION FOR CLASS CERTIFICATION AND EXHIBITS filed byDollar Tree Stores, Inc. Re 159 Order. FILED UNDER SEAL (aaa, COURT STAFF) (Filed on 4/10/2009) (Entered: 04/17/2009)
157 Declaration in Support of 147 Declaration in Opposition, SUPPLEMENTAL DECLARATION OF ROSSANA S. ELTANAL REGARDING SIGNATORIES' CONCURRENCE WITH THE ELECTRONIC FILING OF SIGNATURES I N SUPPORT OF DOLLAR TREE STORES, INC.'S OPPOSITION TO PLAINTIFFS'

Case: 3:07-cv-04012-SC As of: 07/27/2011 02:39 PM PDT 15 of 33

04/13/2009
04/16/2009 04/17/2009 04/17/2009 04/17/2009 04/17/2009 04/17/2009 04/17/2009 04/17/2009 04/23/2009 04/29/2009
05/26/2009 06/11/2009 06/11/2009 06/25/2009 06/25/2009 06/25/2009

MOTION FOR CLASS CERTIFICATION filed byDollar Tree Stores, Inc.. (Related document(s) 147 ) (Eltanal, Rossana) (Filed on 4/13/2009) (Entered: 04/13/2009)
158 CERTIFICATE OF SERVICE by Dollar Tree Stores, Inc. re 137 Declaration in Opposition, 138 Declaration in Opposition, PROOF OF SERVICE BY HAND DELIVERY (Toshi's Legal Connection) (Eltanal, Rossana) (Filed on 4/13/2009) (Entered: 04/13/2009)
159 ORDER by Judge Samuel Conti granting (156) Motion to Seal in case 3:07−cv−04012−SC (sclc2, COURT STAFF) (Filed on 4/16/2009) (Entered: 04/16/2009)
162 Reply in Support of Representative Plaintiffs' 124 Motion for Class Certification filed byRobert Runnings. (Kuehn, Molly) (Filed on 4/17/2009) Modified on 4/20/2009 (aaa, COURT STAFF). (Entered: 04/17/2009)
163 Declaration of Molly A. Kuehn, Esq. in Support of 162 Reply to Opposition filed byRobert Runnings. (Related document(s) 162 ) (Kuehn, Molly) (Filed on 4/17/2009) (Entered: 04/17/2009)
164 Declaration of Scott Edward Cole, Esq. in Support of 162 Reply to Opposition filed byRobert Runnings. (Related document(s) 162 ) (Kuehn, Molly) (Filed on 4/17/2009) (Entered: 04/17/2009)
165 RESPONSE to re 162 Reply to Opposition Plaintiffs' Response to Defendant's Evidentiary Objections in Support of its Opposition by Robert Runnings. (Kuehn, Molly) (Filed on 4/17/2009) (Entered: 04/17/2009)
166 OBJECTIONS to re 162 Reply to Opposition Evidentiary Objections in Support of Plaintiffs' Reply to Plaintiffs' Class Certification Motion by Robert Runnings. (Kuehn, Molly) (Filed on 4/17/2009) (Entered: 04/17/2009)
167 Proposed Order re 162 Reply to Opposition [Proposed] Order Overruling Defendant's Evidentiary Objections in Support of its Opposition by Robert Runnings. (Kuehn, Molly) (Filed on 4/17/2009) (Entered: 04/17/2009)
168 Proposed Order re 162 Reply to Opposition [Proposed] Order Sustaining Plaintiffs' Evidentiary Objections in Support of Plaintiffs' Reply by Robert Runnings. (Kuehn, Molly) (Filed on 4/17/2009) (Entered: 04/17/2009)
169 ORDER by Judge Samuel Conti Denying (103) Motion for Leave to Provide Full Case Citations (tdm, COURT STAFF) (Filed on 4/23/2009) (Entered: 04/23/2009)
170 CLERKS NOTICE taking the case management conference set for May 1, 2009 off calendar. (tdm, COURT STAFF) (Filed on 4/29/2009) (Additional attachment(s) added on 4/29/2009: # 2 Corrected Clerks Notice) (tdm, COURT STAFF). (Entered: 04/29/2009)
171 ORDER by Judge Samuel Conti in case 3:07−cv−02050−SC; granting (124) Motion to Certify Class in case 3:07−cv−04012−SC (sclc2, COURT STAFF) (Filed on 5/26/2009) (Entered: 05/26/2009)
172 STIPULATION and [Proposed] Order Extending Time for Submission of Notice to the Class by Robert Runnings. (Kuehn, Molly) (Filed on 6/11/2009) (Entered: 06/11/2009)
173 STIPULATION AND ORDER Extending Time for Submission of Notice to the Class to 6/25/09. Signed by Judge Samuel Conti on 6/11/09. (tdm, COURT STAFF) (Filed on 6/11/2009) (Entered: 06/11/2009)
174 Brief re 171 Order on Motion to Certify Class Brief Re Class Notice filed byRobert Runnings. (Related document(s) 171 ) (Kuehn, Molly) (Filed on 6/25/2009) (Entered: 06/25/2009)
175 Proposed Order re 174 Brief Re Class Notice by Robert Runnings. (Kuehn, Molly) (Filed on 6/25/2009) (Entered: 06/25/2009)
176 Declaration of Scott Edward Cole in Support of 174 Brief Re Class Notice filed byRobert Runnings. (Related document(s) 174 ) (Kuehn, Molly) (Filed on

Case: 3:07-cv-04012-SC As of: 07/27/2011 02:39 PM PDT 16 of 33

06/25/2009 06/25/2009 06/25/2009 06/26/2009 06/30/2009 07/02/2009 10/01/2009 10/09/2009 10/09/2009 10/13/2009
10/13/2009
10/13/2009

6/25/2009) (Entered: 06/25/2009)
177 Brief MEMORANDUM IN SUPPORT OF DEFENDANT DOLLAR TREE STORES, INC.'S FORM OF CLASS NOTICE filed byDollar Tree Stores, Inc.. (Johnson, Krista) (Filed on 6/25/2009) (Entered: 06/25/2009)
178 Declaration of KRISTA STEVENSON JOHNSON IN SUPPORT OF DEFENDANT'S FORM OF CLASS NOTICE filed byDollar Tree Stores, Inc.. (Johnson, Krista) (Filed on 6/25/2009) (Entered: 06/25/2009)
179 Proposed Order RE: CLASS NOTICE by Dollar Tree Stores, Inc.. (Johnson, Krista) (Filed on 6/25/2009) (Entered: 06/25/2009)
180 Letter from KRISTA STEVENSON JOHNSON. (Johnson, Krista) (Filed on 6/26/2009) (Entered: 06/26/2009)
181 Letter from Molly A. Kuehn. (Kuehn, Molly) (Filed on 6/30/2009) (Entered: 06/30/2009)
182 ORDER re: Notice to the Class (sclc2, COURT STAFF) (Filed on 7/2/2009) (Entered: 07/02/2009)
183 Letter from Matthew P. Vandall to Magistrate Judge Joseph Spero. (Attachments: # 1 Exhibit A−D, # 2 Exhibit E−F, # 3 Exhibit G−H, # 4 Exhibit I−M)(Vandall, Matthew) (Filed on 10/1/2009) (Entered: 10/01/2009)
184 Ex Parte Application DEFENDANT DOLLAR TREE STORES, INC.'S EX PARTE MOTION FOR AN ORDER SHORTENING TIME TO HEAR DEFENDANT'S MOTION FOR EXTENSION OF OPT OUT DEADLINE AND ADDITIONAL NOTICE TO CLASS MEMBERS filed by Dollar Tree Stores, Inc.. (Johnson, Krista) (Filed on 10/9/2009) (Entered: 10/09/2009)
185 Proposed Order re 184 Ex Parte Application DEFENDANT DOLLAR TREE STORES, INC.'S EX PARTE MOTION FOR AN ORDER SHORTENING TIME TO HEAR DEFENDANT'S MOTION FOR EXTENSION OF OPT OUT DEADLINE AND ADDITIONAL NOTICE TO CLASS MEMBERS by Dollar Tree Stores, Inc.. (Johnson, Krista) (Filed on 10/9/2009) (Entered: 10/09/2009)
186 MOTION EXTENSION OF OPT OUT DEADLINE AND ADDITIONAL NOTICE TO POTENTIAL CLASS MEMBERS re 184 Ex Parte Application DEFENDANT DOLLAR TREE STORES, INC.'S EX PARTE MOTION FOR AN ORDER SHORTENING TIME TO HEAR DEFENDANT'S MOTION FOR EXTENSION OF OPT OUT DEADLINE AND ADDITIONAL NOTICE TO CLASS MEMBERS DOLLAR TREE STORES, INC.'S NOTICE OF MOTION AND MOTION FOR EXTENSION OF OPT OUT DEADLINE AND ADDITIONAL NOTICE TO POTENTIAL CLASS MEMBERS filed by Dollar Tree Stores, Inc.. (Johnson, Krista) (Filed on 10/13/2009) (Entered: 10/13/2009)
187 Declaration of MATTHEW P. VANDALL in Support of 186 MOTION EXTENSION OF OPT OUT DEADLINE AND ADDITIONAL NOTICE TO POTENTIAL CLASS MEMBERS re 184 Ex Parte Application DEFENDANT DOLLAR TREE STORES, INC.'S EX PARTE MOTION FOR AN ORDER SHORTENING TIME TO HEAR DEFENDANT'S MOTION FOR EXTENSION MOTION EXTENSION OF OPT OUT DEADLINE AND ADDITIONAL NOTICE TO POTENTIAL CLASS MEMBERS re 184 Ex Parte Application DEFENDANT DOLLAR TREE STORES, INC.'S EX PARTE MOTION FOR AN ORDER SHORTENING TIME TO HEAR DEFENDANT'S MOTION FOR EXTENSION MOTION EXTENSION OF OPT OUT DEADLINE AND ADDITIONAL NOTICE TO POTENTIAL CLASS MEMBERS re 184 Ex Parte Application DEFENDANT DOLLAR TREE STORES, INC.'S EX PARTE MOTION FOR AN ORDER SHORTENING TIME TO HEAR DEFENDANT'S MOTION FOR EXTENSION WITH EXHIBITS A−E filed byDollar Tree Stores, Inc.. (Related document(s) 186 ) (Johnson, Krista) (Filed on 10/13/2009) (Entered: 10/13/2009)
188 Declaration of KRISTA STEVENSON JOHNSON in Support of 186 MOTION EXTENSION OF OPT OUT DEADLINE AND ADDITIONAL NOTICE TO POTENTIAL CLASS MEMBERS re 184 Ex Parte Application DEFENDANT DOLLAR TREE STORES, INC.'S EX PARTE MOTION FOR AN ORDER

Case: 3:07-cv-04012-SC As of: 07/27/2011 02:39 PM PDT 17 of 33

10/13/2009
10/13/2009 10/16/2009 10/19/2009 10/20/2009
10/30/2009 10/30/2009 11/10/2009

SHORTENING TIME TO HEAR DEFENDANT'S MOTION FOR EXTENSION MOTION EXTENSION OF OPT OUT DEADLINE AND ADDITIONAL NOTICE TO POTENTIAL CLASS MEMBERS re 184 Ex Parte Application DEFENDANT DOLLAR TREE STORES, INC.'S EX PARTE MOTION FOR AN ORDER SHORTENING TIME TO HEAR DEFENDANT'S MOTION FOR EXTENSION MOTION EXTENSION OF OPT OUT DEADLINE AND ADDITIONAL NOTICE TO POTENTIAL CLASS MEMBERS re 184 Ex Parte Application DEFENDANT DOLLAR TREE STORES, INC.'S EX PARTE MOTION FOR AN ORDER SHORTENING TIME TO HEAR DEFENDANT'S MOTION FOR EXTENSION WITH EXHIBITS A−K filed byDollar Tree Stores, Inc.. (Attachments: # 1 Exhibit A−D, # 2 Exhibit E−K)(Related document(s) 186 ) (Johnson, Krista) (Filed on 10/13/2009) (Entered: 10/13/2009)
189 Proposed Order re 186 MOTION EXTENSION OF OPT OUT DEADLINE AND ADDITIONAL NOTICE TO POTENTIAL CLASS MEMBERS re 184 Ex Parte Application DEFENDANT DOLLAR TREE STORES, INC.'S EX PARTE MOTION FOR AN ORDER SHORTENING TIME TO HEAR DEFENDANT'S MOTION FOR EXTENSION MOTION EXTENSION OF OPT OUT DEADLINE AND ADDITIONAL NOTICE TO POTENTIAL CLASS MEMBERS re 184 Ex Parte Application DEFENDANT DOLLAR TREE STORES, INC.'S EX PARTE MOTION FOR AN ORDER SHORTENING TIME TO HEAR DEFENDANT'S MOTION FOR EXTENSION MOTION EXTENSION OF OPT OUT DEADLINE AND ADDITIONAL NOTICE TO POTENTIAL CLASS MEMBERS re 184 Ex Parte Application DEFENDANT DOLLAR TREE STORES, INC.'S EX PARTE MOTION FOR AN ORDER SHORTENING TIME TO HEAR DEFENDANT'S MOTION FOR EXTENSION by Dollar Tree Stores, Inc.. (Johnson, Krista) (Filed on 10/13/2009) (Entered: 10/13/2009)
190 CLERKS NOTICE Setting Telephonic Discovery Hearing re: Jt Discovery Letter [docket 183] for 10/19/2009 at 09:00 AM in Courtroom A, 15th Floor, San Francisco. Court to initiate the phone contact. (klh, COURT STAFF) (Filed on 10/13/2009) (Entered: 10/13/2009)
191 ORDER by Judge Samuel Conti denying (115) Ex Parte Application ; denying in part (117) Motion in case 3:07−cv−02050−SC; denying (184) Ex Parte Application ; denying in part (186) Motion in case 3:07−cv−04012−SC (sclc1, COURT STAFF) (Filed on 10/16/2009) (Entered: 10/16/2009)
192 Minute Entry: Discovery Hearing re docket number 183 held on 10/19/2009 before Magistrate Judge Joseph C. Spero (Date Filed: 10/19/2009). (Court Reporter Sahar McVickar: 9:08−9:30) (ls, COURT STAFF) (Date Filed: 10/19/2009) (Entered: 10/19/2009)
193 Transcript of Proceedings held on 10/19/09, before Judge Joseph C. Spero. Court Reporter/Transcriber Sahar McVickar, CSR, RPR, Telephone number (415) 626−6060/sahar_mcvickar@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 1/15/2010. (McVickar, Sahar) (Filed on 10/20/2009) (Entered: 10/20/2009)
194 Brief Supplemental Briefing Regarding Plaintiffs' Counsel's Misleading Communications With Potential Class Members filed byDollar Tree Stores, Inc.. (Johnson, Krista) (Filed on 10/30/2009) (Entered: 10/30/2009)
195 Declaration of Matthew P. Vandall in Support of Defendant's 194 Supplemental Briefing Regarding Plaintiff's Counsel's Misleading Communications with Class Members filed byDollar Tree Stores, Inc.. (Johnson, Krista) (Filed on 10/30/2009) Modified on 11/2/2009 (aaa, COURT STAFF). (Entered: 10/30/2009)
196 ORDER re: attorney communication. Signed by Judge Samuel Conti on 11/10/2009. (sclc1, COURT STAFF) (Filed on 11/10/2009) (Entered: 11/10/2009)

Case: 3:07-cv-04012-SC As of: 07/27/2011 02:39 PM PDT 18 of 33

12/23/2009
01/13/2010
01/13/2010 02/02/2010
02/09/2010 03/05/2010 03/15/2010 03/15/2010 03/15/2010 03/17/2010 03/22/2010 03/25/2010 04/02/2010 04/02/2010

197 Letter from Krista Stevenson Johnson/Counsel for Defendant and Molly Kuehn/Counsel for Class Plaintiffs Exhibits A−L Attached. (Attachments: # 1 Exhibit A (Part 1 of 2), # 2 Exhibit A (Part 2 of 2), # 3 Exhibit B (Part 1 of 2), # 4 Exhibit B (Part 2 of 2), # 5 Exhibit C (Part 1 of 2), # 6 Exhibit C (Part 2 of 2), # 7 Exhibit D, # 8 Exhibit E, # 9 Exhibit F, # 10 Exhibit G−J, # 11 Exhibit K−L)(Johnson, Krista) (Filed on 12/23/2009) (Entered: 12/23/2009)
198 *** PLEASE DISREGARD. INCORRECT DOCUMENT ATTACHED. SEE NEXT DOCKET ENTRY FOR CORRECT DOCUMENT *** CLERKS NOTICE setting Telephonic Hearing on Joint Discovery Letter [docket no. 197]. Motion Hearing set for 1/22/2010 at 01:30 PM in Courtroom A, 15th Floor, San Francisco. (klh, COURT STAFF) (Filed on 1/13/2010) Modified on 1/13/2010 (klh, COURT STAFF). (Entered: 01/13/2010)
199 CLERKS NOTICE setting Telephonic Hearing on Joint Discovery Letter [docket no. 197]. Motion Hearing set for 1/22/2010 at 01:30 PM in Courtroom A, 15th Floor, San Francisco. (klh, COURT STAFF) (Filed on 1/13/2010) (Entered: 01/13/2010)
200 Transcript of Proceedings held on 1/22/10, before Judge Joseph C. Spero. Court Reporter/Transcriber Sahar McVickar, Telephone number (415) 626−6060/sahar_mcvickar@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 5/3/2010. (McVickar, Sahar) (Filed on 2/2/2010) (Entered: 02/02/2010)
201 CLERKS NOTICE Case Management Conference set for 3/5/2010 10:00 AM in Courtroom 1, 17th Floor, San Francisco. (tdm, COURT STAFF) (Filed on 2/9/2010) (Entered: 02/09/2010)
202 Minute Entry: Status Conference (Date Filed: 3/5/2010). Further Status Conference set for 3/19/2010 10:00 AM in Courtroom 1, 17th Floor, San Francisco. (Court Reporter Catherine Edwards.) (tdm, COURT STAFF) (Date Filed: 3/5/2010) (Entered: 03/05/2010)
203 Proposed Order After Case Management Conference by Robert Runnings. (Kuehn, Molly) (Filed on 3/15/2010) (Entered: 03/15/2010)
204 Declaration of MATTHEW P. VANDALL in Support of Defendant's Proposed Case Management Order (Exhibits A through H) filed byDollar Tree Stores, Inc.. (Johnson, Krista) (Filed on 3/15/2010) (Entered: 03/15/2010)
205 Proposed Order After Case Management Conference by Dollar Tree Stores, Inc.. (Johnson, Krista) (Filed on 3/15/2010) (Entered: 03/15/2010)
206 ORDER Requiring JOINT Proposed Order; Vacating Hearing (sclc2, COURT STAFF) (Filed on 3/17/2010) (Entered: 03/17/2010)
207 Proposed Order After Case Management Confernece by Dollar Tree Stores, Inc.. (Vandall, Matthew) (Filed on 3/22/2010) (Entered: 03/22/2010)
208 ORDER after Case Management Conference (sclc2, COURT STAFF) (Filed on 3/25/2010) (Entered: 03/25/2010)
209 Joint MOTION for Disclosure JOINT ADMINISTRATIVE MOTION FOR SCHEDULING ORDER REGARDING PARTIES' EXPERT DISCLOSURE filed by Dollar Tree Stores, Inc., Robert Runnings. (Johnson, Krista) (Filed on 4/2/2010) (Entered: 04/02/2010)
210 Declaration of KRISTA STEVENSON JOHNSON IN SUPPORT OF 209 DEFENDANT'S PROPOSED SCHEDULING ORDER REGARDING PARTIES' EXPERT DISCLOSURE filed byDollar Tree Stores, Inc.. (Johnson, Krista) (Filed on 4/2/2010) Modified on 4/6/2010 (aaa, COURT STAFF). (Entered: 04/02/2010)

Case: 3:07-cv-04012-SC As of: 07/27/2011 02:39 PM PDT 19 of 33

04/02/2010
04/06/2010 04/08/2010 04/08/2010
04/08/2010
04/08/2010 04/08/2010 04/08/2010 04/08/2010 04/08/2010 04/08/2010 04/12/2010 04/12/2010 04/12/2010

211 Proposed Order SUBMITTED BY DEFENDANT ON 209 JOINT ADMINISTRATIVE MOTION FOR SCHEDULING ORDER REGARDING PARTIES' EXPERT DISCLOSURE by Dollar Tree Stores, Inc.. (Johnson, Krista) (Filed on 4/2/2010) Modified on 4/6/2010 (aaa, COURT STAFF). (Entered: 04/02/2010)
212 ORDER by Judge Samuel Conti Re: (151) Motion for Disclosure in case 3:07−cv−02050−SC; Re: (209) Motion for Disclosure in case 3:07−cv−04012−SC (sclc2, COURT STAFF) (Filed on 4/6/2010) (Entered: 04/06/2010)
213 Ex Parte Application For An Order Shortening Time To Hear Defendant Dollar Tree Stores, Inc.'s Motion To Curb Deposition Discovery Abuses; Memorandum of Points And Authorities filed by Dollar Tree Stores, Inc.. (Johnson, Krista) (Filed on 4/8/2010) (Entered: 04/08/2010)
214 Declaration of Matthew P. Vandall in Support of 213 Ex Parte Application For An Order Shortening Time To Hear Defendant Dollar Tree Stores, Inc.'s Motion To Curb Deposition Discovery Abuses; Memorandum of Points And Authorities filed byDollar Tree Stores, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B − Part 1 of 3, # 3 Exhibit B − Part 2 of 3, # 4 Exhibit B − Part 3 of 3, # 5 Exhibit C)(Related document(s) 213 ) (Johnson, Krista) (Filed on 4/8/2010) (Entered: 04/08/2010)
215 Declaration of Krista Stevenson Johnson in Support of 213 Ex Parte Application For An Order Shortening Time To Hear Defendant Dollar Tree Stores, Inc.'s Motion To Curb Deposition Discovery Abuses; Memorandum of Points And Authorities, 214 Declaration in Support, filed byDollar Tree Stores, Inc.. (Attachments: # 1 Exhibit D−F, # 2 Exhibit G−H, # 3 Exhibit I−Q)(Related document(s) 213 , 214 ) (Johnson, Krista) (Filed on 4/8/2010) (Entered: 04/08/2010)
216 Proposed Order re 213 Ex Parte Application For An Order Shortening Time To Hear Defendant Dollar Tree Stores, Inc.'s Motion To Curb Deposition Discovery Abuses; Memorandum of Points And Authorities by Dollar Tree Stores, Inc.. (Johnson, Krista) (Filed on 4/8/2010) (Entered: 04/08/2010)
217 Letter Brief Re: Discovery Issues filed byDollar Tree Stores, Inc.. (Johnson, Krista) (Filed on 4/8/2010) (Entered: 04/08/2010)
218 Proposed Order re 217 Letter Brief [Proposed] Order Granting Defendant's Request To Curb Deposition Discovery Abuses By Plaintiffs by Dollar Tree Stores, Inc.. (Johnson, Krista) (Filed on 4/8/2010) (Entered: 04/08/2010)
219 MOTION Defendant Dollar Tree Stores, Inc.'s Motion For Administrative Relief to File Under Seal filed by Dollar Tree Stores, Inc.. (Johnson, Krista) (Filed on 4/8/2010) (Entered: 04/08/2010)
220 Declaration of Krista Stevenson Johnson in Support of 219 MOTION Defendant Dollar Tree Stores, Inc.'s Motion For Administrative Relief to File Under Seal filed byDollar Tree Stores, Inc.. (Related document(s) 219 ) (Johnson, Krista) (Filed on 4/8/2010) (Entered: 04/08/2010)
221 Proposed Order re 219 MOTION Defendant Dollar Tree Stores, Inc.'s Motion For Administrative Relief to File Under Seal by Dollar Tree Stores, Inc.. (Johnson, Krista) (Filed on 4/8/2010) (Entered: 04/08/2010)
222 ORDER, by Judge Joseph C. Spero, signed 4/9/10,granting (162) Dft's Admin. Motion File Under Seal in case 3:07−cv−02050−SC, and 219 Dft's Admin. Motion to File Under Seal in case in 3:07−cv−04012−SC (klh, COURT STAFF) (Filed on 4/12/2010) (Entered: 04/12/2010)
223 ORDER, by Judge Joseph C. Spero, signed 4/12/10,granting 213 Ex Parte Application for Order Shortening Time. (klh, COURT STAFF) (Filed on 4/12/2010) (Entered: 04/12/2010)
224 CLERKS NOTICE setting Dft's Letter to Order Class Counsel to Curb its Discovery Abuses has been set for 4/16/2010 at 09:30 AM before Magistrate Judge Joseph C. Spero, in Courtroom A, 15th Floor, San Francisco. (klh, COURT STAFF) (Filed on 4/12/2010) (Entered: 04/12/2010)

Case: 3:07-cv-04012-SC As of: 07/27/2011 02:39 PM PDT 20 of 33

04/14/2010
04/14/2010 04/14/2010 04/14/2010 04/19/2010 04/19/2010
04/21/2010 04/22/2010 04/23/2010 04/28/2010 04/30/2010 05/11/2010 05/12/2010

225 ERRATA TO 220 DECLARATIONS OF KRISTA STEVENSON JOHNSON AND 214 MATTHEW P. VANDALL IN SUPPORT OF DEFENDANT DOLLAR TREE STORES, INC'S BRIEFING RE: DEPOSITION ABUSES AND IN SUPPORT OF BRIEFING by Dollar Tree Stores, Inc.. (Attachments: # 1 Exhibit, # 2 Exhibit)(Johnson, Krista) (Filed on 4/14/2010) Modified on 4/15/2010 (aaa, COURT STAFF). (Entered: 04/14/2010)
226 Letter from Matthew R. Bainer, Esq. IN OPPOSITION TO DEFENDANTS 213 REQUEST FOR AN ORDER CURBING DISCOVERY ABUSES. (Bainer, Matthew) (Filed on 4/14/2010) Modified on 4/15/2010 (aaa, COURT STAFF). (Entered: 04/14/2010)
227 Declaration of Heather Abelson, Esq. IN OPPOSITION TO DEFENDANTS 213 REQUEST FOR AN ORDER CURBING DISCOVERY ABUSES filed byRobert Runnings. (Attachments: # 1 Exhibit Exhibits A − J)(Bainer, Matthew) (Filed on 4/14/2010) Modified on 4/15/2010 (aaa, COURT STAFF). (Entered: 04/14/2010)
228 Proposed Order DENYING DEFENDANTS 213 REQUEST FOR AN ORDER CURBING DISCOVERY ABUSES by Robert Runnings. (Bainer, Matthew) (Filed on 4/14/2010) Modified on 4/15/2010 (aaa, COURT STAFF). (Entered: 04/14/2010)
229 Minute Entry: Discovery Motion Hearing held on 4/16/2010 before Joseph C. Spero re:Docket No. 160 − Dft's Motion to Curb Discovery Abuses. Motion granted in part, denied in part. Discovery Hearing set for 4/23/2010 at 09:30 AM in Courtroom A, 15th Floor, San Francisco. (Court Reporter Debra Pas.) (klh, COURT STAFF) (Date Filed: 4/19/2010) (Entered: 04/19/2010)
230 Transcript of Proceedings held on 4/16/2010, before Judge Joseph C. Spero. Court Reporter/Transcriber Debra L. Pas, CRR, Telephone number (415) 431−1477. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 7/19/2010. (Pas, Debra) (Filed on 4/19/2010) (Entered: 04/19/2010)
231 Proposed Order Continuing Hearing on Discovery Conference by Robert Runnings. (Kuehn, Molly) (Filed on 4/21/2010) (Entered: 04/21/2010)
232 ORDER GRANTING UNOPPOSED REQUEST TO CONTINUE HEARING ON DISCOVERY CONFERENCE: MOLLY KUEHN RE: MESSER DEPOSITION NOTE. Discovery Hearing re−set for 4/30/2010 at 09:30 AM in Courtroom A, 15th Floor, San Francisco. Signed by Judge Joseph C. Spero on 4/21/10. (klh, COURT STAFF) (Filed on 4/22/2010) (Entered: 04/22/2010)
233 Letter from Parties Regarding Confirmed Class Member Deposition Schedule. (Kuehn, Molly) (Filed on 4/23/2010) (Entered: 04/23/2010)
234 CLERKS NOTICE Discovery Hearing re: Joint Letter re: Scheduled Depos set for 4/30/2010 at 09:30 AM in Courtroom A, 15th Floor, San Francisco. (klh, COURT STAFF) (Filed on 4/28/2010) (Entered: 04/28/2010)
235 Minute Entry: Discovery Hearing held on 4/30/2010 before Joseph C. Spero re: Messer Depo Note and Joint Letter re: Deposition Schedule [docket no. 233 in C07−4012) (Court Reporter Joan Columbini.) (klh, COURT STAFF) (Date Filed: 4/30/2010) (Entered: 04/30/2010)
236 Letter from Krista S. Johnson to Honorable Samuel Conti on Behalf of Dollar Tree Stores, Inc.. (Attachments: # 1 Exhibit A)(Johnson, Krista) (Filed on 5/11/2010) (Entered: 05/11/2010)
237 Transcript of Proceedings held on April 30, 2010, before Judge Samuel Conti. Court Reporter/Transcriber Joan Marie Columbini, Telephone number 415−255−6842, Joan_Columbini@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber

Case: 3:07-cv-04012-SC As of: 07/27/2011 02:39 PM PDT 21 of 33

05/28/2010 06/07/2010
06/07/2010
06/07/2010
06/08/2010 06/09/2010 06/09/2010 06/09/2010 06/14/2010 06/18/2010
06/18/2010

until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 8/10/2010. (Columbini, Joan) (Filed on 5/12/2010) (Entered: 05/12/2010)
238 Letter from COUNSEL − JOINT LETTER. (Attachments: # 1 Exhibit A−D, # 2 Exhibit E−H, # 3 Exhibit I, # 4 Exhibit J−K)(Vandall, Matthew) (Filed on 5/28/2010) (Entered: 05/28/2010)
239 MOTION for Leave to File Excess Pages ADMINISTRATIVE MOTION AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ADMINISTRATIVE MOTION FOR RELIEF TO FILE ITS MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION TO DECERTIFY THE CLASS IN EXCESS OF 25 PAGES filed by Dollar Tree Stores, Inc.. (Johnson, Krista) (Filed on 6/7/2010) (Entered: 06/07/2010)
240 Declaration of KRISTA STEVENSON JOHNSON in Support of 239 MOTION for Leave to File Excess Pages ADMINISTRATIVE MOTION AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ADMINISTRATIVE MOTION FOR RELIEF TO FILE ITS MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION TO DECERTIFY THE CLASS IN filed byDollar Tree Stores, Inc.. (Related document(s) 239 ) (Johnson, Krista) (Filed on 6/7/2010) (Entered: 06/07/2010)
241 Proposed Order re 239 MOTION for Leave to File Excess Pages ADMINISTRATIVE MOTION AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ADMINISTRATIVE MOTION FOR RELIEF TO FILE ITS MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION TO DECERTIFY THE CLASS IN by Dollar Tree Stores, Inc.. (Johnson, Krista) (Filed on 6/7/2010) (Entered: 06/07/2010)
242 CLERKS NOTICE. Telephonic Discovery Hearing set for 6/9/2010 at 09:00 AM in Courtroom A, 15th Floor, San Francisco. re: Docket No. 238 (klh, COURT STAFF) (Filed on 6/8/2010) (Entered: 06/08/2010)
243 Minute Entry: Telephonic Discovery Hearing held on 6/9/2010 before Joseph C. Spero re: Joit Letter Compelling Class Discovery Requests [Docket Nos. 238 in C07−4012 and 178 in C07−2050]. Court to prepare Order. (Court Reporter Kathy Wyatt.) (klh, COURT STAFF) (Date Filed: 6/9/2010) (Entered: 06/09/2010)
***Deadlines terminated. Discovery hearing held on 6/9/10 re: 238 Letter filed by Dollar Tree Stores, Inc.. (klh, COURT STAFF) (Filed on 6/9/2010) (Entered: 06/09/2010)
244 ORDER GRANTING IN PART, DENYING IN PART MOTION TO COMPEL (JOINT LETTER BRIEF) re (178 in 3:07−cv−02050−SC) Letter filed by Dollar Tree Stores, Inc., and (238 in 3:07−cv−04012−SC) Letter filed by Dollar Tree Stores, Inc. Signed by Judge Joseph C. Spero on 06/09/10. (klh, COURT STAFF) (Filed on 6/9/2010) (Entered: 06/09/2010)
245 ORDER by Judge Samuel Conti granting in part and denying in part (179) Motion for Leave to File Excess Pages in case 3:07−cv−02050−SC; granting in part and denying in part (239) Motion for Leave to File Excess Pages in case 3:07−cv−04012−SC (sclc2, COURT STAFF) (Filed on 6/14/2010) (Entered: 06/14/2010)
246 MOTION MOTION TO DECERTIFY THE CLASS DEFENDANT DOLLAR TREE STORES, INC.'S NOTICE OF MOTION AND MOTION TO DECERTIFY THE CLASS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF filed by Dollar Tree Stores, Inc.. Motion Hearing set for 7/23/2010 10:00 AM in Courtroom 1, 17th Floor, San Francisco. (McClain, Maureen) (Filed on 6/18/2010) (Entered: 06/18/2010)
247 Declaration of MATTHEW P. VANDALL in Support of 246 MOTION MOTION TO DECERTIFY THE CLASS DEFENDANT DOLLAR TREE STORES, INC.'S NOTICE OF MOTION AND MOTION TO DECERTIFY THE CLASS;

Case: 3:07-cv-04012-SC As of: 07/27/2011 02:39 PM PDT 22 of 33

06/18/2010 06/18/2010 06/18/2010
06/18/2010 06/18/2010 06/18/2010

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF DECLARATION OF MATTHEW P. VANDALL IN SUPPORT OF DEFENDANT DOLLAR TREE STORES, INC.'S MOTION TO DECERTIFY THE CLASS filed byDollar Tree Stores, Inc.. (Attachments: # 1 Exhibit A−B, # 2 Exhibit C−E, # 3 Exhibit F, # 4 Exhibit G, # 5 Exhibit H−J, # 6 Exhibit K−M, # 7 Exhibit N−S, # 8 Exhibit T−V, # 9 Exhibit W, # 10 Exhibit X−Z, # 11 Exhibit AA−GG, # 12 Exhibit HH−JJ)(Related document(s) 246 ) (McClain, Maureen) (Filed on 6/18/2010) (Entered: 06/18/2010)
248 Declaration of ROBERT CRANDALL, MBA in Support of 246 MOTION MOTION TO DECERTIFY THE CLASS DEFENDANT DOLLAR TREE STORES, INC.'S NOTICE OF MOTION AND MOTION TO DECERTIFY THE CLASS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF DECLARATION OF ROBERT CRANDALL, MBA filed byDollar Tree Stores, Inc.. (Related document(s) 246 ) (McClain, Maureen) (Filed on 6/18/2010) (Entered: 06/18/2010)
249 Declaration of ROBERT CRANDALL, MBA in Support of 246 MOTION MOTION TO DECERTIFY THE CLASS DEFENDANT DOLLAR TREE STORES, INC.'S NOTICE OF MOTION AND MOTION TO DECERTIFY THE CLASS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF REBUTTAL DECLARATION OF ROBERT CRANDALL, MBA filed byDollar Tree Stores, Inc.. (Related document(s) 246 ) (McClain, Maureen) (Filed on 6/18/2010) (Entered: 06/18/2010)
250 Declaration of KRISTA STEVENSON JOHNSON in Support of 246 MOTION MOTION TO DECERTIFY THE CLASS DEFENDANT DOLLAR TREE STORES, INC.'S NOTICE OF MOTION AND MOTION TO DECERTIFY THE CLASS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF DECLARATION OF KRISTA STEVENSON JOHNSON IN SUPPORT OF DOLLAR TREE STORES, INC.'S MOTION TO DECERTIFY THE CLASS filed byDollar Tree Stores, Inc.. (Attachments: # 1 Exhibit 1−3, # 2 Exhibit 4−5, # 3 Exhibit 6, # 4 Exhibit 7−9, # 5 Exhibit 10−14, # 6 Exhibit 15−17, # 7 Exhibit 18−20, # 8 Exhibit 21−25, # 9 Exhibit 26−29, # 10 Exhibit 30−32, # 11 Exhibit 33−35, # 12 Exhibit 36−38, # 13 Exhibit 39−43, # 14 Exhibit 44−45, # 15 Exhibit 46−48, # 16 Exhibit 49−51, # 17 Exhibit 52−54, # 18 Exhibit 55−56, # 19 Exhibit 57−60)(Related document(s) 246 ) (McClain, Maureen) (Filed on 6/18/2010) (Entered: 06/18/2010)
251 Declaration of JERRY CLEMENS in Support of 246 MOTION MOTION TO DECERTIFY THE CLASS DEFENDANT DOLLAR TREE STORES, INC.'S NOTICE OF MOTION AND MOTION TO DECERTIFY THE CLASS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF DECLARATION OF JERRY CLEMENS IN SUPPORT OF DEFENDANT'S MOTION TO DECERTIFY THE CLASS filed byDollar Tree Stores, Inc.. (Related document(s) 246 ) (McClain, Maureen) (Filed on 6/18/2010) (Entered: 06/18/2010)
252 Declaration of PAM WOLPA in Support of 246 MOTION MOTION TO DECERTIFY THE CLASS DEFENDANT DOLLAR TREE STORES, INC.'S NOTICE OF MOTION AND MOTION TO DECERTIFY THE CLASS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF DECLARATION OF PAM WOLPA IN SUPPORT OF DOLLAR TREE STORES, INC.'S MOTION TO DECERTIFY THE CLASS filed byDollar Tree Stores, Inc.. (Attachments: # 1 Exhibit A−D, # 2 Exhibit E−G)(Related document(s) 246 ) (McClain, Maureen) (Filed on 6/18/2010) (Entered: 06/18/2010)
253 Declaration of CHARLENE MONTGOMERY in Support of 246 MOTION MOTION TO DECERTIFY THE CLASS DEFENDANT DOLLAR TREE STORES, INC.'S NOTICE OF MOTION AND MOTION TO DECERTIFY THE CLASS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF DECLARATION OF CHARLENE MONTGOMERY IN SUPPORT OF DEFENDANT'S MOTION TO DECERTIFY THE CLASS filed byDollar Tree Stores, Inc.. (Related document(s) 246 ) (McClain, Maureen) (Filed on 6/18/2010) (Entered: 06/18/2010)

Case: 3:07-cv-04012-SC As of: 07/27/2011 02:39 PM PDT 23 of 33

06/18/2010
06/18/2010
06/18/2010 06/18/2010
07/22/2010 07/27/2010 09/09/2010 09/27/2010 10/05/2010 10/13/2010 10/14/2010 10/14/2010 10/14/2010

254 OBJECTIONS to re 246 MOTION MOTION TO DECERTIFY THE CLASS DEFENDANT DOLLAR TREE STORES, INC.'S NOTICE OF MOTION AND MOTION TO DECERTIFY THE CLASS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF DEFENDANT'S OBJECTIONS TO THE EXPERT REPORTS OF DAVID LEWIN, PH.D. by Dollar Tree Stores, Inc.. (McClain, Maureen) (Filed on 6/18/2010) (Entered: 06/18/2010)
255 Request for Judicial Notice re 246 MOTION MOTION TO DECERTIFY THE CLASS DEFENDANT DOLLAR TREE STORES, INC.'S NOTICE OF MOTION AND MOTION TO DECERTIFY THE CLASS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF DEFENDANT DOLLAR TREE STORES, INC.'S REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION TO DECERTIFY THE CLASS filed byDollar Tree Stores, Inc.. (Related document(s) 246 ) (McClain, Maureen) (Filed on 6/18/2010) (Entered: 06/18/2010)
256 Proposed Order re 255 Request for Judicial Notice, [PROPOSED] ORDER GRANTING DEFENDANT DOLLAR TREE STORES, INC.'S REQUEST FOR JUDICIAL NOTICE by Dollar Tree Stores, Inc.. (McClain, Maureen) (Filed on 6/18/2010) (Entered: 06/18/2010)
257 Proposed Order re 246 MOTION MOTION TO DECERTIFY THE CLASS DEFENDANT DOLLAR TREE STORES, INC.'S NOTICE OF MOTION AND MOTION TO DECERTIFY THE CLASS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF [PROPOSED] ORDER GRANTING DEFENDANT DOLLAR TREE STORES, INC.'S MOTION TO DECERTIFY THE CLASS by Dollar Tree Stores, Inc.. (McClain, Maureen) (Filed on 6/18/2010) (Entered: 06/18/2010)
258 Memorandum in Opposition TO DEFENDANTS SUPPLEMENTAL MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 246 MOTION TO DECERTIFY THE CLASS filed byRobert Runnings. (Kuehn, Molly) (Filed on 7/22/2010) Modified on 7/23/2010 (aaa, COURT STAFF). (Entered: 07/22/2010)
259 ORDER by Judge Samuel Conti denying (224) Administrative Motion to Submit Supplemental Briefing, denying request for Shortened Time for Briefing in case 3:07−cv−02050−SC (sclc2, COURT STAFF) (Filed on 7/27/2010) (Entered: 07/27/2010)
260 ORDER by Judge Samuel Conti granting in part and denying in part (188) Motion to Decertify in case 3:07−cv−02050−SC; granting in part and denying in part (246) Motion to Decertify in case 3:07−cv−04012−SC (sclc2, COURT STAFF) (Filed on 9/9/2010) (Entered: 09/09/2010)
261 Letter from Counsel − JOINT LETTER TO MAGISTRATE JUDGE JOSEPH C. SPERO. (Attachments: # 1 Exhibit A − C, # 2 Exhibit D − F, # 3 Exhibit G − L, # 4 Exhibit M − T)(Johnson, Krista) (Filed on 9/27/2010) (Entered: 09/27/2010)
262 ORDER by Judge Samuel Conti denying (238) Motion for Extension of Time with Regard to Expert Discovery (sclc2, COURT STAFF) (Filed on 10/5/2010) (Entered: 10/05/2010)
263 CLERKS NOTICE. Telephonic Discovery Hearing set for 10/14/2010 at 11:00 AM in Courtroom A, 15th Floor, San Francisco. (klh, COURT STAFF) (Filed on 10/13/2010) (Entered: 10/13/2010)
264 Ex Parte Application for an Order Shortening Time to Hear Defendant's Motion to Compel Discovery Responses; MPA filed by Dollar Tree Stores, Inc.. (Johnson, Krista) (Filed on 10/14/2010) (Entered: 10/14/2010)
265 Declaration of Krista Stevenson Johnson in Support of 264 Ex Parte Application for an Order Shortening Time to Hear Defendant's Motion to Compel Discovery Responses; Exhibits 1−4 filed byDollar Tree Stores, Inc.. (Johnson, Krista) (Filed on 10/14/2010) Modified on 10/15/2010 (aaa, COURT STAFF). (Entered: 10/14/2010)
266 Proposed Order Granting Defendant's 264 Request for an Order Shortening Time by Dollar Tree Stores, Inc.. (Johnson, Krista) (Filed on 10/14/2010) Modified on

Case: 3:07-cv-04012-SC As of: 07/27/2011 02:39 PM PDT 24 of 33

10/14/2010 10/14/2010 10/15/2010 10/15/2010 10/15/2010 10/15/2010 10/15/2010
10/15/2010
10/15/2010

10/15/2010 (aaa, COURT STAFF). (Entered: 10/14/2010)
267 Letter from Matthew P. Vandall to Magistrate Judge Joseph C. Spero. (Johnson, Krista) (Filed on 10/14/2010) (Entered: 10/14/2010)
268 Minute Entry: TelephonicDiscovery Hearing held on 10/14/2010 before Joseph C. Spero re: Joint Discovery Letter, docket no. 233 in C07−2050 and docket 261 in C07−4012 (Court Reporter Jim Yeomans.) (klh, COURT STAFF) (Date Filed: 10/14/2010) (Entered: 10/14/2010)
269 DECLARATION of MOLLY A. DESARIO ESQ. IN SUPPORT OF PLAINTIFFS 270 OPPOSITION TO DEFENDANTS EX PARTE APPLICATION FOR AN ORDER SHORTENING TIME TO HEAR DEFENDANTS MOTION TO COMPEL DISCOVERY RESPONSES filed byRobert Runnings. (Attachments: # 1 Exhibit A)(DeSario, Molly) (Filed on 10/15/2010) Modified on 10/18/2010 (aaa, COURT STAFF). (Entered: 10/15/2010)
270 Memorandum in Opposition TO DEFENDANT'S 264 EX PARTE APPLICATION FOR AN ORDER SHORTING TIME TO HEAR DEFENDANT'S MOTION TO COMPEL DISCOVERY RESPONSES filed byRobert Runnings. (DeSario, Molly) (Filed on 10/15/2010) Modified on 10/18/2010 (aaa, COURT STAFF). (Entered: 10/15/2010)
271 Proposed Order DENYING DEFENDANT'S 264 EX PARTE APPLICATION FOR AN ORDER SHORTENING TIME TO HEAR DEFENDANT'S MOTION TO COMPEL DISCOVERY RESPONSES by Robert Runnings. (DeSario, Molly) (Filed on 10/15/2010) Modified on 10/18/2010 (aaa, COURT STAFF). (Entered: 10/15/2010)
272 MOTION for Summary Judgment DEFENDANTS NOTICE OF MOTION AND MOTION FOR SUMMARY ADJUDICATION OF CLASS ISSUES AND CLAIMS AND ALTERNATIVE MOTION TO DECERTIFY THE CLASS; MEMORANDUM IN SUPPORT THEREOF filed by Dollar Tree Stores, Inc.. Motion Hearing set for 11/19/2010 10:00 AM in Courtroom 1, 17th Floor, San Francisco. (McClain, Maureen) (Filed on 10/15/2010) (Entered: 10/15/2010)
273 Declaration of MATTHEW P. VANDALL in Support of 272 MOTION for Summary Judgment DEFENDANTS NOTICE OF MOTION AND MOTION FOR SUMMARY ADJUDICATION OF CLASS ISSUES AND CLAIMS AND ALTERNATIVE MOTION TO DECERTIFY THE CLASS; MEMORANDUM IN SUPPORT THEREOF filed byDollar Tree Stores, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5−7, # 6 Exhibit 8−9, # 7 Exhibit 10, # 8 Exhibit 11, # 9 Exhibit 13, # 10 Exhibit 14−15, # 11 Exhibit 16−26, # 12 Exhibit 27, # 13 Exhibit 28−30, # 14 Exhibit 31−33, # 15 Exhibit 34 (1 OF 2), # 16 Exhibit 34 (2 OF 2), # 17 Exhibit 35, # 18 Exhibit 36 (1 OF 2), # 19 Exhibit 36 (2 OF 2), # 20 Exhibit 37−41, # 21 Exhibit 42−46, # 22 Exhibit 47, # 23 Exhibit 48−53, # 24 Exhibit 54−58, # 25 Exhibit 59, # 26 Exhibit 60−61, # 27 Exhibit 62, # 28 Exhibit 63−63B, # 29 Exhibit 64, # 30 Exhibit 65 (1 OF 3), # 31 Exhibit 65 (2 OF 3), # 32 Exhibit 65 (3 OF 3), # 33 Exhibit 66)(Related document(s) 272 ) (McClain, Maureen) (Filed on 10/15/2010) (Entered: 10/15/2010)
274 Declaration of CHARLOTTA JACOBSON−ALLEN in Support of 272 MOTION for Summary Judgment DEFENDANTS NOTICE OF MOTION AND MOTION FOR SUMMARY ADJUDICATION OF CLASS ISSUES AND CLAIMS AND ALTERNATIVE MOTION TO DECERTIFY THE CLASS; MEMORANDUM IN SUPPORT THEREOF filed byDollar Tree Stores, Inc.. (Attachments: # 1 Exhibit A−B, # 2 Exhibit C, # 3 Exhibit D, # 4 Exhibit E−F, # 5 Exhibit G−J, # 6 Exhibit K (1 OF 4), # 7 Exhibit K (2 OF 4), # 8 Exhibit K (3 OF 4), # 9 Exhibit K (4 OF 4), # 10 Exhibit L)(Related document(s) 272 ) (McClain, Maureen) (Filed on 10/15/2010) (Entered: 10/15/2010)
275 Declaration of PAULA BRADY in Support of 272 MOTION for Summary Judgment DEFENDANTS NOTICE OF MOTION AND MOTION FOR SUMMARY ADJUDICATION OF CLASS ISSUES AND CLAIMS AND ALTERNATIVE MOTION TO DECERTIFY THE CLASS; MEMORANDUM IN SUPPORT THEREOF filed byDollar Tree Stores, Inc.. (Related document(s) 272 ) (McClain, Maureen) (Filed on 10/15/2010) (Entered: 10/15/2010)

Case: 3:07-cv-04012-SC As of: 07/27/2011 02:39 PM PDT 25 of 33

10/15/2010 10/15/2010 10/15/2010 10/15/2010
10/15/2010 10/15/2010
10/15/2010 10/15/2010 10/15/2010 10/15/2010 10/15/2010

276 Declaration of JILL ASH in Support of 272 MOTION for Summary Judgment DEFENDANTS NOTICE OF MOTION AND MOTION FOR SUMMARY ADJUDICATION OF CLASS ISSUES AND CLAIMS AND ALTERNATIVE MOTION TO DECERTIFY THE CLASS; MEMORANDUM IN SUPPORT THEREOF filed byDollar Tree Stores, Inc.. (Related document(s) 272 ) (McClain, Maureen) (Filed on 10/15/2010) (Entered: 10/15/2010)
277 Declaration of DAVID MCDEARMON in Support of 272 MOTION for Summary Judgment DEFENDANTS NOTICE OF MOTION AND MOTION FOR SUMMARY ADJUDICATION OF CLASS ISSUES AND CLAIMS AND ALTERNATIVE MOTION TO DECERTIFY THE CLASS; MEMORANDUM IN SUPPORT THEREOF filed byDollar Tree Stores, Inc.. (Related document(s) 272 ) (McClain, Maureen) (Filed on 10/15/2010) (Entered: 10/15/2010)
278 Declaration of MARK ADAMS in Support of 272 MOTION for Summary Judgment DEFENDANTS NOTICE OF MOTION AND MOTION FOR SUMMARY ADJUDICATION OF CLASS ISSUES AND CLAIMS AND ALTERNATIVE MOTION TO DECERTIFY THE CLASS; MEMORANDUM IN SUPPORT THEREOF filed byDollar Tree Stores, Inc.. (Related document(s) 272 ) (McClain, Maureen) (Filed on 10/15/2010) (Entered: 10/15/2010)
279 Declaration of PAUL JONES in Support of 272 MOTION for Summary Judgment DEFENDANTS NOTICE OF MOTION AND MOTION FOR SUMMARY ADJUDICATION OF CLASS ISSUES AND CLAIMS AND ALTERNATIVE MOTION TO DECERTIFY THE CLASS; MEMORANDUM IN SUPPORT THEREOF filed byDollar Tree Stores, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B (1 OF 2), # 3 Exhibit B (2 OF 2))(Related document(s) 272 ) (McClain, Maureen) (Filed on 10/15/2010) (Entered: 10/15/2010)
280 Declaration of ROBERT CRANDALL, MBA in Support of 273 Declaration in Support,,,, filed byDollar Tree Stores, Inc.. (Attachments: # 1 Exhibit 1−14)(Related document(s) 273 ) (McClain, Maureen) (Filed on 10/15/2010) (Entered: 10/15/2010)
281 Request for Judicial Notice re 272 MOTION for Summary Judgment DEFENDANTS NOTICE OF MOTION AND MOTION FOR SUMMARY ADJUDICATION OF CLASS ISSUES AND CLAIMS AND ALTERNATIVE MOTION TO DECERTIFY THE CLASS; MEMORANDUM IN SUPPORT THEREOF filed byDollar Tree Stores, Inc.. (Attachments: # 1 Exhibit A−G, # 2 Exhibit H−K)(Related document(s) 272 ) (McClain, Maureen) (Filed on 10/15/2010) (Entered: 10/15/2010)
282 Proposed Order re 281 Request for Judicial Notice, by Dollar Tree Stores, Inc.. (McClain, Maureen) (Filed on 10/15/2010) (Entered: 10/15/2010)
283 Proposed Order re 272 MOTION for Summary Judgment DEFENDANTS NOTICE OF MOTION AND MOTION FOR SUMMARY ADJUDICATION OF CLASS ISSUES AND CLAIMS AND ALTERNATIVE MOTION TO DECERTIFY THE CLASS; MEMORANDUM IN SUPPORT THEREOF by Dollar Tree Stores, Inc.. (McClain, Maureen) (Filed on 10/15/2010) (Entered: 10/15/2010)
284 MOTION for Summary Judgment DEFENDANT'S MOTION FOR SUMMARY JDUGMENT, OR IN THE ALTERNATIVE, FOR PARTIAL SUMMARY JUDGMENT OF CLASS MEMBER SCOTT DIEHL'S CLAIMS FOR RELIEF filed by Dollar Tree Stores, Inc.. Motion Hearing set for 11/19/2010 10:00 AM in Courtroom 1, 17th Floor, San Francisco. (McClain, Maureen) (Filed on 10/15/2010) (Entered: 10/15/2010)
285 Proposed Order re 284 MOTION for Summary Judgment DEFENDANT'S MOTION FOR SUMMARY JDUGMENT, OR IN THE ALTERNATIVE, FOR PARTIAL SUMMARY JUDGMENT OF CLASS MEMBER SCOTT DIEHL'S CLAIMS FOR RELIEF by Dollar Tree Stores, Inc.. (McClain, Maureen) (Filed on 10/15/2010) (Entered: 10/15/2010)
286 MOTION for Summary Judgment DEFENDANTS MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, FOR PARTIAL SUMMARY JUDGMENT OF CLASS MEMBER DIANA DURSTONS CLAIMS FOR RELIEF filed by Dollar Tree Stores, Inc.. Motion Hearing set for 11/19/2010 10:00 AM in

Case: 3:07-cv-04012-SC As of: 07/27/2011 02:39 PM PDT 26 of 33

10/15/2010 10/15/2010 10/15/2010 10/15/2010 10/15/2010 10/15/2010 10/15/2010 10/15/2010 10/15/2010 10/15/2010
10/15/2010

Courtroom 1, 17th Floor, San Francisco. (McClain, Maureen) (Filed on 10/15/2010) (Entered: 10/15/2010)
287 Proposed Order re 286 MOTION for Summary Judgment DEFENDANTS MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, FOR PARTIAL SUMMARY JUDGMENT OF CLASS MEMBER DIANA DURSTONS CLAIMS FOR RELIEF by Dollar Tree Stores, Inc.. (McClain, Maureen) (Filed on 10/15/2010) (Entered: 10/15/2010)
288 MOTION for Summary Judgment DEFENDANTS NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION OF CLASS MEMBER MIKE DEUBERTS CLAIMS FOR RELIEF; MEMORANDUM IN SUPPORT filed by Dollar Tree Stores, Inc.. Motion Hearing set for 11/19/2010 10:00 AM in Courtroom 1, 17th Floor, San Francisco. (McClain, Maureen) (Filed on 10/15/2010) (Entered: 10/15/2010)
289 Proposed Order re 288 MOTION for Summary Judgment DEFENDANTS NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION OF CLASS MEMBER MIKE DEUBERTS CLAIMS FOR RELIEF; MEMORANDUM IN SUPPORT by Dollar Tree Stores, Inc.. (McClain, Maureen) (Filed on 10/15/2010) (Entered: 10/15/2010)
290 MOTION for Summary Judgment DEFENDANTS MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION OF CLASS MEMBER PAUL AVILAS CLAIMS FOR RELIEF filed by Dollar Tree Stores, Inc.. Motion Hearing set for 11/19/2010 10:00 AM in Courtroom 1, 17th Floor, San Francisco. (McClain, Maureen) (Filed on 10/15/2010) (Entered: 10/15/2010)
291 Proposed Order re 290 MOTION for Summary Judgment DEFENDANTS MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION OF CLASS MEMBER PAUL AVILAS CLAIMS FOR RELIEF by Dollar Tree Stores, Inc.. (McClain, Maureen) (Filed on 10/15/2010) (Entered: 10/15/2010)
292 MOTION for Summary Judgment DEFENDANTS MOTION FOR SUMMARY JUDGMENT OF CLASS MEMBER ALLEN VOGELS CLAIMS FOR RELIEF filed by Dollar Tree Stores, Inc.. Motion Hearing set for 11/19/2010 10:00 AM in Courtroom 1, 17th Floor, San Francisco. (McClain, Maureen) (Filed on 10/15/2010) (Entered: 10/15/2010)
293 Declaration of MATTHEW P. VANDALL in Support of 292 MOTION for Summary Judgment DEFENDANTS MOTION FOR SUMMARY JUDGMENT OF CLASS MEMBER ALLEN VOGELS CLAIMS FOR RELIEF filed byDollar Tree Stores, Inc.. (Related document(s) 292 ) (McClain, Maureen) (Filed on 10/15/2010) (Entered: 10/15/2010)
294 Proposed Order re 292 MOTION for Summary Judgment DEFENDANTS MOTION FOR SUMMARY JUDGMENT OF CLASS MEMBER ALLEN VOGELS CLAIMS FOR RELIEF by Dollar Tree Stores, Inc.. (McClain, Maureen) (Filed on 10/15/2010) (Entered: 10/15/2010)
295 MOTION for Summary Judgment NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT BY DEFENDANT DOLLAR TREE STORES, INC. BASED ON BANKRUPTCY FILINGS OF PLAINTIFFS; MEMORANDUM OF POINTS AND AUTHORITIES filed by Dollar Tree Stores, Inc.. Motion Hearing set for 11/19/2010 10:00 AM in Courtroom 1, 17th Floor, San Francisco. (Vandall, Matthew) (Filed on 10/15/2010) (Entered: 10/15/2010)
296 Declaration of CHARLOTTA JACOBSON−ALLEN in Support of 295 MOTION for Summary Judgment NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT BY DEFENDANT DOLLAR TREE STORES, INC. BASED ON BANKRUPTCY FILINGS OF PLAINTIFFS; MEMORANDUM OF POINTS AND AUTHORITIES filed byDollar Tree Stores, Inc.. (Attachments: # 1 Appendix A)(Related document(s) 295 ) (Vandall, Matthew) (Filed on 10/15/2010) (Entered: 10/15/2010)
297 Declaration of GUS VASTARDIS in Support of 295 MOTION for Summary Judgment NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT

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BY DEFENDANT DOLLAR TREE STORES, INC. BASED ON BANKRUPTCY FILINGS OF PLAINTIFFS; MEMORANDUM OF POINTS AND AUTHORITIES filed byDollar Tree Stores, Inc.. (Related document(s) 295 ) (Vandall, Matthew) (Filed on 10/15/2010) (Entered: 10/15/2010)
298 Declaration of ROBERT L. ZALETEL in Support of 295 MOTION for Summary Judgment NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT BY DEFENDANT DOLLAR TREE STORES, INC. BASED ON BANKRUPTCY FILINGS OF PLAINTIFFS; MEMORANDUM OF POINTS AND AUTHORITIES filed byDollar Tree Stores, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B−D, # 3 Exhibit E−F, # 4 Exhibit G−H, # 5 Exhibit I−J, # 6 Exhibit K−L, # 7 Exhibit M−N, # 8 Exhibit O−S, # 9 Exhibit T−V, # 10 Exhibit W−Z, # 11 Exhibit AA−CC, # 12 Exhibit DD−EE, # 13 Exhibit FF−GG, # 14 Exhibit HH−II, # 15 Exhibit JJ−LL)(Related document(s) 295 ) (Vandall, Matthew) (Filed on 10/15/2010) (Entered: 10/15/2010)
299 Proposed Order re 295 MOTION for Summary Judgment NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT BY DEFENDANT DOLLAR TREE STORES, INC. BASED ON BANKRUPTCY FILINGS OF PLAINTIFFS; MEMORANDUM OF POINTS AND AUTHORITIES by Dollar Tree Stores, Inc.. (Vandall, Matthew) (Filed on 10/15/2010) (Entered: 10/15/2010)
300 MOTION to Dismiss DEFENDANT DOLLAR TREE STORES, INC.S NOTICE OF MOTION AND MOTION TO DISMISS CLAIMS OF CLASS MEMBERS WHO FAILED TO RESPOND TO DEFENDANTS DISCOVERY; MEMORANDUM OF POINTS AND AUTHORITIES [FED. R. CIV. P. RULE 37] filed by Dollar Tree Stores, Inc.. Motion Hearing set for 11/19/2010 10:00 AM in Courtroom 1, 17th Floor, San Francisco. (Vandall, Matthew) (Filed on 10/15/2010) (Entered: 10/15/2010)
301 Declaration of KRISTA STEVENSON JOHNSON in Support of 300 MOTION to Dismiss DEFENDANT DOLLAR TREE STORES, INC.S NOTICE OF MOTION AND MOTION TO DISMISS CLAIMS OF CLASS MEMBERS WHO FAILED TO RESPOND TO DEFENDANTS DISCOVERY; MEMORANDUM OF POINTS AND AUTHORITIES [FED. R. CIV. P. RULE 37] MOTION to Dismiss DEFENDANT DOLLAR TREE STORES, INC.S NOTICE OF MOTION AND MOTION TO DISMISS CLAIMS OF CLASS MEMBERS WHO FAILED TO RESPOND TO DEFENDANTS DISCOVERY; MEMORANDUM OF POINTS AND AUTHORITIES [FED. R. CIV. P. RULE 37] filed byDollar Tree Stores, Inc.. (Related document(s) 300 ) (Vandall, Matthew) (Filed on 10/15/2010) (Entered: 10/15/2010)
302 Declaration of MATTHEW VANDALL in Support of 300 MOTION to Dismiss DEFENDANT DOLLAR TREE STORES, INC.S NOTICE OF MOTION AND MOTION TO DISMISS CLAIMS OF CLASS MEMBERS WHO FAILED TO RESPOND TO DEFENDANTS DISCOVERY; MEMORANDUM OF POINTS AND AUTHORITIES [FED. R. CIV. P. RULE 37] MOTION to Dismiss DEFENDANT DOLLAR TREE STORES, INC.S NOTICE OF MOTION AND MOTION TO DISMISS CLAIMS OF CLASS MEMBERS WHO FAILED TO RESPOND TO DEFENDANTS DISCOVERY; MEMORANDUM OF POINTS AND AUTHORITIES [FED. R. CIV. P. RULE 37] filed byDollar Tree Stores, Inc.. (Attachments: # 1 Exhibit A−C, # 2 Exhibit D−F, # 3 Exhibit G−H, # 4 Exhibit I, # 5 Exhibit J−K, # 6 Exhibit L−O)(Related document(s) 300 ) (Vandall, Matthew) (Filed on 10/15/2010) (Entered: 10/15/2010)
303 Proposed Order re 300 MOTION to Dismiss DEFENDANT DOLLAR TREE STORES, INC.S NOTICE OF MOTION AND MOTION TO DISMISS CLAIMS OF CLASS MEMBERS WHO FAILED TO RESPOND TO DEFENDANTS DISCOVERY; MEMORANDUM OF POINTS AND AUTHORITIES [FED. R. CIV. P. RULE 37] MOTION to Dismiss DEFENDANT DOLLAR TREE STORES, INC.S NOTICE OF MOTION AND MOTION TO DISMISS CLAIMS OF CLASS MEMBERS WHO FAILED TO RESPOND TO DEFENDANTS DISCOVERY; MEMORANDUM OF POINTS AND AUTHORITIES [FED. R. CIV. P. RULE 37] by Dollar Tree Stores, Inc.. (Vandall, Matthew) (Filed on 10/15/2010) (Entered: 10/15/2010)

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10/29/2010

304 MOTION to Dismiss DEFENDANT'S NOTICE OF MOTION AND MOTION TO DISMISS CERTAIN CLASS MEMBERS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF filed by Dollar Tree Stores, Inc.. Motion Hearing set for 11/19/2010 10:00 AM in Courtroom 1, 17th Floor, San Francisco. (Vandall, Matthew) (Filed on 10/15/2010) (Entered: 10/15/2010)
305 Declaration of ROBERT CRANDALL, MBA in Support of 304 MOTION to Dismiss DEFENDANT'S NOTICE OF MOTION AND MOTION TO DISMISS CERTAIN CLASS MEMBERS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF filed byDollar Tree Stores, Inc.. (Attachments: # 1 Exhibit 1−14)(Related document(s) 304 ) (Vandall, Matthew) (Filed on 10/15/2010) (Entered: 10/15/2010)
306 Proposed Order re 304 MOTION to Dismiss DEFENDANT'S NOTICE OF MOTION AND MOTION TO DISMISS CERTAIN CLASS MEMBERS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF by Dollar Tree Stores, Inc.. (Vandall, Matthew) (Filed on 10/15/2010) (Entered: 10/15/2010)
307 ORDER, by Judge Joseph C. Spero, signed 10/18/10,denying (243) Ex Parte Application for Order Shortening Time in case 3:07−cv−02050−SC (klh, COURT STAFF) (Filed on 10/18/2010) (Entered: 10/18/2010)
308 MOTION for Extension of Time to Complete Discovery ADMINISTRATIVE MOTION TO EXTEND DISCOVERY DEADLINE FOR LIMITED PURPOSE OF RESOLVING PLAINTIFFS' REFUSAL TO RESPOND TO TIMELY−SERVED INTERROGATORIES; MPA filed by Dollar Tree Stores, Inc.. (Johnson, Krista) (Filed on 10/22/2010) (Entered: 10/22/2010)
309 Declaration of KRISTA STEVENSON JOHNSON in Support of 308 MOTION for Extension of Time to Complete Discovery ADMINISTRATIVE MOTION TO EXTEND DISCOVERY DEADLINE FOR LIMITED PURPOSE OF RESOLVING PLAINTIFFS' REFUSAL TO RESPOND TO TIMELY−SERVED INTERROGATORIES; MPA filed byDollar Tree Stores, Inc.. (Related document(s) 308 ) (Johnson, Krista) (Filed on 10/22/2010) (Entered: 10/22/2010)
310 Proposed Order re 308 MOTION for Extension of Time to Complete Discovery ADMINISTRATIVE MOTION TO EXTEND DISCOVERY DEADLINE FOR LIMITED PURPOSE OF RESOLVING PLAINTIFFS' REFUSAL TO RESPOND TO TIMELY−SERVED INTERROGATORIES; MPA by Dollar Tree Stores, Inc.. (Johnson, Krista) (Filed on 10/22/2010) (Entered: 10/22/2010)
311 Memorandum in Opposition re 308 MOTION for Extension of Time to Complete Discovery ADMINISTRATIVE MOTION TO EXTEND DISCOVERY DEADLINE FOR LIMITED PURPOSE OF RESOLVING PLAINTIFFS' REFUSAL TO RESPOND TO TIMELY−SERVED INTERROGATORIES; MPA filed byRobert Runnings. (Cole, Scott) (Filed on 10/25/2010) (Entered: 10/25/2010)
312 Proposed Order re 311 Memorandum in Opposition, DENYING DEFENDANTS ADMINISTRATIVE MOTION TO EXTEND DISCOVERY DEADLINE FOR LIMITED PURPOSE OF RESOLVING PLAINTIFFS REFUSAL TO RESPOND TO TIMELY−SERVED INTERROGATORIES by Robert Runnings. (Cole, Scott) (Filed on 10/25/2010) (Entered: 10/25/2010)
313 ORDER Granting Limited Extension of Discovery Deadline. Signed by Judge Samuel Conti on 10/28/2010. (sclc2, COURT STAFF) (Filed on 10/28/2010) (Entered: 10/28/2010)
314 CERTIFICATE OF SERVICE by Dollar Tree Stores, Inc. re 273 Declaration in Support,,,, PROOF OF SERVICE DOCUMENT TO BE FILED UNDER SEAL PER 04/16/10, COURT ORDER [DOCKET NO. 159] EXHIBIT 63 TO DEC. OF M. VANDALL IN SUPPORT OF DEFS CLASS MOTION FOR SUMMARY ADJUDICATION &ALTERNATIVE MOTION TO DECERTIFY CLASS [EXH.63 DEC. OF CHARLOTTA JACOBSON−ALLEN DOC. NO. 137] (Vandall, Matthew) (Filed on 10/28/2010) (Entered: 10/28/2010)
315 Memorandum in Opposition re 295 MOTION for Summary Judgment NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT BY DEFENDANT

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DOLLAR TREE STORES, INC. BASED ON BANKRUPTCY FILINGS OF PLAINTIFFS; MEMORANDUM OF POINTS AND AUTHORITIES filed byRobert Runnings. (DeSario, Molly) (Filed on 10/29/2010) (Entered: 10/29/2010)
316 Proposed Order re 315 Memorandum in Opposition, TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT BASED ON BANKRUPTCY FILINGS OF PLAINTIFFS by Robert Runnings. (DeSario, Molly) (Filed on 10/29/2010) (Entered: 10/29/2010)
317 Memorandum in Opposition re 300 MOTION to Dismiss DEFENDANT DOLLAR TREE STORES, INC.S NOTICE OF MOTION AND MOTION TO DISMISS CLAIMS OF CLASS MEMBERS WHO FAILED TO RESPOND TO DEFENDANTS DISCOVERY; MEMORANDUM OF POINTS AND AUTHORITIES [FED. R. CIV. P. RULE 37] MOTION to Dismiss DEFENDANT DOLLAR TREE STORES, INC.S NOTICE OF MOTION AND MOTION TO DISMISS CLAIMS OF CLASS MEMBERS WHO FAILED TO RESPOND TO DEFENDANTS DISCOVERY; MEMORANDUM OF POINTS AND AUTHORITIES [FED. R. CIV. P. RULE 37] filed byRobert Runnings. (DeSario, Molly) (Filed on 10/29/2010) (Entered: 10/29/2010)
318 DECLARATION in Opposition to 300 MOTION to Dismiss DEFENDANT DOLLAR TREE STORES, INC.S NOTICE OF MOTION AND MOTION TO DISMISS CLAIMS OF CLASS MEMBERS WHO FAILED TO RESPOND TO DEFENDANTS DISCOVERY; MEMORANDUM OF POINTS AND AUTHORITIES [FED. R. CIV. P. RULE 37] MOTION to Dismiss DEFENDANT DOLLAR TREE STORES, INC.S NOTICE OF MOTION AND MOTION TO DISMISS CLAIMS OF CLASS MEMBERS WHO FAILED TO RESPOND TO DEFENDANTS DISCOVERY; MEMORANDUM OF POINTS AND AUTHORITIES [FED. R. CIV. P. RULE 37] filed byRobert Runnings. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Related document(s) 300 ) (DeSario, Molly) (Filed on 10/29/2010) (Entered: 10/29/2010)
319 Proposed Order re 317 Memorandum in Opposition,, TO DEFENDANTS MOTION TO DISMISS CLAIMS OF CLASS MEMBERS WHO FAILED TO RESPOND TO DEFENDANTS DISCOVERY by Robert Runnings. (DeSario, Molly) (Filed on 10/29/2010) (Entered: 10/29/2010)
320 OBJECTIONS to EVIDENTIARY OBJECTIONS TO THE 273 DECLARATION OF MATTHEW VANDALL IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION OF CLASS ISSUES AND CLAIMS AND ALTERNATIVE MOTION TO DECERTIFY THE CLASS by Robert Runnings. (DeSario, Molly) (Filed on 10/29/2010) Modified on 11/2/2010 (aaa, COURT STAFF). (Entered: 10/29/2010)
321 Proposed Order SUSTAINING PLAINTIFFS EVIDENTIARY 320 OBJECTIONS TO THE DECLARATION OF MATTHEW VANDALL IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION OF CLASS ISSUES AND CLAIMS AND ALTERNATIVE MOTION TO DECERTIFY THE CLASS by Robert Runnings. (DeSario, Molly) (Filed on 10/29/2010) Modified on 11/2/2010 (aaa, COURT STAFF). (Entered: 10/29/2010)
322 OBJECTIONS to EVIDENTIARY OBJECTIONS TO DEFENDANTS 281 REQUEST FOR JUDICIAL NOTICE by Robert Runnings. (DeSario, Molly) (Filed on 10/29/2010) Modified on 11/2/2010 (aaa, COURT STAFF). (Entered: 10/29/2010)
323 Proposed Order SUSTAINING PLAINTIFFS EVIDENTIARY 320 OBJECTIONS TO DEFENDANTS REQUEST FOR JUDICIAL NOTICE by Robert Runnings. (DeSario, Molly) (Filed on 10/29/2010) Modified on 11/2/2010 (aaa, COURT STAFF). (Entered: 10/29/2010)
324 *** FILED IN ERROR. REFER TO DOCUMENT 326 . *** Memorandum in Opposition To DEFENDANTS MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION OF CLASS MEMBER PAUL AVILAS CLAIMS FOR RELIEF filed byRobert Runnings. (DeSario, Molly) (Filed on 10/29/2010) Modified on 11/1/2010 (feriab, COURT STAFF). (Entered: 10/29/2010)

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325 Memorandum in Opposition TO DEFENDANTS 290 MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION OF CLASS MEMBER PAUL AVILAS CLAIMS FOR RELIEF filed byRobert Runnings. (DeSario, Molly) (Filed on 10/29/2010) Modified on 11/2/2010 (aaa, COURT STAFF). (Entered: 10/29/2010)
326 Proposed Order DENYING DEFENDANTS 290 MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION OF CLASS MEMBER PAUL AVILAS CLAIMS FOR RELIEF by Robert Runnings. (DeSario, Molly) (Filed on 10/29/2010) Modified on 11/2/2010 (aaa, COURT STAFF). (Entered: 10/29/2010)
327 Memorandum in Opposition TO DEFENDANTS 290 MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION OF CLASS MEMBER ALLEN VOGELS CLAIMS FOR RELIEF filed byRobert Runnings. (DeSario, Molly) (Filed on 10/29/2010) Modified on 11/2/2010 (aaa, COURT STAFF). (Entered: 10/29/2010)
328 Proposed Order DENYING DEFENDANTS 292 MOTION FOR SUMMARY JUDGMENT OF CLASS MEMBER ALLEN VOGELS CLAIMS FOR RELIEF by Robert Runnings. (DeSario, Molly) (Filed on 10/29/2010) Modified on 11/2/2010 (aaa, COURT STAFF). (Entered: 10/29/2010)
329 Memorandum in Opposition TO DEFENDANTS 304 MOTION TO DISMISS CERTAIN CLASS MEMBERS filed byRobert Runnings. (DeSario, Molly) (Filed on 10/29/2010) Modified on 11/2/2010 (aaa, COURT STAFF). (Entered: 10/29/2010)
330 Proposed Order DENYING DEFENDANTS 304 MOTION TO DISMISS CERTAIN CLASS MEMBERS by Robert Runnings. (DeSario, Molly) (Filed on 10/29/2010) Modified on 11/2/2010 (aaa, COURT STAFF). (Entered: 10/29/2010)
331 DECLARATION of MOLLY A. DESARIO IN SUPPORT OF PLAINTIFFS 317 OPPOSITION TO DEFENDANTS MOTION TO DISMISS CLAIMS OF CLASS MEMBERS WHO FAILED TO RESPOND TO DEFENDANTS DISCOVERY filed byRobert Runnings. (Attachments: # 1 Exhibit A)(DeSario, Molly) (Filed on 10/29/2010) Modified on 11/2/2010 (aaa, COURT STAFF). (Entered: 10/29/2010)
332 DECLARATION of Molly A. DeSario ESQ. IN SUPPORT OF PLAINTIFFS 258 OPPOSITION TO DEFENDANTS MOTION FOR SUMMARY ADJUDICATION OF CLASS ISSUES AND CLAIMS AND ALTERNATIVE MOTION TO DECERTIFY THE CLASS filed byRobert Runnings. (DeSario, Molly) (Filed on 10/29/2010) Modified on 11/2/2010 (aaa, COURT STAFF). (Entered: 10/29/2010)
333 EXHIBITS re 332 Declaration in Opposition, EXHIBITS 1−32 filed byRobert Runnings. (Related document(s) 332 ) (DeSario, Molly) (Filed on 10/29/2010) (Entered: 10/29/2010)
334 Proposed Order DENYING DEFENDANTS 246 MOTION FOR SUMMARY ADJUDICATION OF CLASS ISSUES AND CLAIMS AND ALTERNATIVE MOTION TO DECERTIFY THE CLASS by Robert Runnings. (DeSario, Molly) (Filed on 10/29/2010) Modified on 11/2/2010 (aaa, COURT STAFF). (Entered: 10/29/2010)
335 OBJECTIONS to PLAINTIFFS EVIDENTIARY OBJECTIONS TO THE 305 DECLARATION OF ROBERT CRANDALL, MBA by Robert Runnings. (DeSario, Molly) (Filed on 10/29/2010) Modified on 11/2/2010 (aaa, COURT STAFF). (Entered: 10/29/2010)
336 Proposed Order re 335 Objection TO THE DECLARATION OF ROBERT CRANDALL, MBA by Robert Runnings. (DeSario, Molly) (Filed on 10/29/2010) (Entered: 10/29/2010)
337 Memorandum in Opposition re 272 MOTION for Summary Judgment DEFENDANTS NOTICE OF MOTION AND MOTION FOR SUMMARY ADJUDICATION OF CLASS ISSUES AND CLAIMS AND ALTERNATIVE MOTION TO DECERTIFY THE CLASS; MEMORANDUM IN SUPPORT THEREOF filed byRobert Runnings. (DeSario, Molly) (Filed on 10/29/2010) (Entered: 10/29/2010)

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338 Reply Memorandum in Support of 272 MOTION for Summary Judgment DEFENDANTS NOTICE OF MOTION AND MOTION FOR SUMMARY ADJUDICATION OF CLASS ISSUES AND CLAIMS AND ALTERNATIVE MOTION TO DECERTIFY THE CLASS; MEMORANDUM IN SUPPORT THEREOF DEFENDANT'S REPLY IN SUPPORT OF ITS MOTION FOR SUMMARY ADJUDICATION OF CLASS ISSUES AND CLAIMS AND ALTERNATIVE MOTION TO DECERTIFY THE CLASS filed by Dollar Tree Stores, Inc. (Vandall, Matthew) (Filed on 11/5/2010) Modified on 11/8/2010 (mjj2, COURT STAFF). (Entered: 11/05/2010)
339 Declaration of MATTHEW P. VANDALL in Support of 338 Reply Memorandum, DECLARATION OF MATTHEW P. VANDALL IN SUPPORT OF DEFENDANTS REPLY IN SUPPORT OF ITS MOTION FOR SUMMARY ADJUDICATION OF CLASS ISSUES AND CLAIMS AND ALTERNATIVE MOTION TO DECERTIFY THE CLASS filed byDollar Tree Stores, Inc.. (Attachments: # 1 Exhibit A−K)(Related document(s) 338 ) (Vandall, Matthew) (Filed on 11/5/2010) (Entered: 11/05/2010)
340 Statement Concerning Plaintiff's Non−Opposition to 286 MOTION for Summary Judgment DEFENDANTS MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, FOR PARTIAL SUMMARY JUDGMENT OF CLASS MEMBER DIANA DURSTONS CLAIMS FOR RELIEF, 284 MOTION for Summary Judgment DEFENDANT'S MOTION FOR SUMMARY JDUGMENT, OR IN THE ALTERNATIVE, FOR PARTIAL SUMMARY JUDGMENT OF CLASS MEMBER SCOTT DIEHL'S CLAIMS FOR RELIEF, 288 MOTION for Summary Judgment DEFENDANTS NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION OF CLASS MEMBER MIKE DEUBERTS CLAIMS FOR RELIEF; MEMORANDUM IN SUPPORT DEFENDANTS STATEMENT CONCERNING PLAINTIFFS NON−OPPOSITION TO MOTIONS FOR SUMMARY JUDGMENT CONCERNING CLASS MEMBERS SCOTT DIEHL, DIANA DURSTON AND MICHAEL DEUBERT filed by Dollar Tree Stores, Inc.. (Related document(s) 286 , 284 , 288 ) (Vandall, Matthew) (Filed on 11/5/2010) Modified on 11/8/2010 (mjj2, COURT STAFF). (Entered: 11/05/2010)
341 Reply Memorandum in Support of 304 MOTION to Dismiss DEFENDANT'S NOTICE OF MOTION AND MOTION TO DISMISS CERTAIN CLASS MEMBERS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF DEFENDANTS REPLY IN SUPPORT OF ITS MOTION TO DISMISS CERTAIN CLASS MEMBERS filed by Dollar Tree Stores, Inc. (Vandall, Matthew) (Filed on 11/5/2010) Modified on 11/8/2010 (mjj2, COURT STAFF). (Entered: 11/05/2010)
342 Reply Memorandum in Support of 290 MOTION for Summary Judgment DEFENDANTS MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION OF CLASS MEMBER PAUL AVILAS CLAIMS FOR RELIEF DEFENDANTS REPLY IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION OF CLASS MEMBER PAUL AVILAS CLAIMS FOR RELIEF filed by Dollar Tree Stores, Inc. (Vandall, Matthew) (Filed on 11/5/2010) Modified on 11/8/2010 (mjj2, COURT STAFF). (Entered: 11/05/2010)
343 Reply Memorandum in Support of 292 MOTION for Summary Judgment DEFENDANTS MOTION FOR SUMMARY JUDGMENT OF CLASS MEMBER ALLEN VOGELS CLAIMS FOR RELIEF DEFENDANTS REPLY IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT OF CLASS MEMBER ALLEN VOGELS CLAIMS FOR RELIEF filed by Dollar Tree Stores, Inc. (Vandall, Matthew) (Filed on 11/5/2010) Modified on 11/8/2010 (mjj2, COURT STAFF). (Entered: 11/05/2010)
344 Reply Memorandum to Plaintiff's Opposition to 295 MOTION for Summary Judgment NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT BY DEFENDANT DOLLAR TREE STORES, INC. BASED ON BANKRUPTCY FILINGS OF PLAINTIFFS; MEMORANDUM OF POINTS AND AUTHORITIES filed by Dollar Tree Stores, Inc. (Vandall, Matthew) (Filed on 11/5/2010) Modified on 11/8/2010 (mjj2, COURT STAFF). (Entered: 11/05/2010)

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345 Supplemental Declaration of GUS VASTARDIA in Support of 344 Reply Memorandum, filed by Dollar Tree Stores, Inc. (Related document(s) 344 ) (Vandall, Matthew) (Filed on 11/5/2010) Modified on 11/8/2010 (mjj2, COURT STAFF). (Entered: 11/05/2010)
346 Reply Memorandum to Plaintiff's Opposition to 300 MOTION to Dismiss DEFENDANT DOLLAR TREE STORES, INC.S NOTICE OF MOTION AND MOTION TO DISMISS CLAIMS OF CLASS MEMBERS WHO FAILED TO RESPOND TO DEFENDANTS DISCOVERY; MEMORANDUM OF POINTS AND AUTHORITIES [FED. R. CIV. P. RULE 37] MOTION to Dismiss DEFENDANT DOLLAR TREE STORES, INC.S NOTICE OF MOTION AND MOTION TO DISMISS CLAIMS OF CLASS MEMBERS WHO FAILED TO RESPOND TO DEFENDANTS DISCOVERY; MEMORANDUM OF POINTS AND AUTHORITIES [FED. R. CIV. P. RULE 37] filed by Dollar Tree Stores, Inc. (Vandall, Matthew) (Filed on 11/5/2010) Modified on 11/8/2010 (mjj2, COURT STAFF). (Entered: 11/05/2010)
347 Supplemental Declaration of GUS VASTARDIS in Support of 346 Reply Memorandum,, filed by Dollar Tree Stores, Inc. (Related document(s) 346 ) (Vandall, Matthew) (Filed on 11/5/2010) Modified on 11/8/2010 (mjj2, COURT STAFF). (Entered: 11/05/2010)
Set Deadlines/Hearings: Jury Trial set for 3/7/2011 09:30 AM in Courtroom 1, 17th Floor, San Francisco. Pretrial Conference set for 2/18/2011 10:00 AM in Courtroom 1, 17th Floor, San Francisco. (tdm, COURT STAFF) (Filed on 11/16/2010) (Entered: 11/16/2010)
348 ORDER by Judge Samuel Conti denying 272 Motion for Summary Judgment; denying 284 Motion for Summary Judgment; denying 286 Motion for Summary Judgment; denying 288 Motion for Summary Judgment; denying 290 Motion for Summary Judgment; denying 292 Motion for Summary Judgment; denying 295 Motion for Summary Judgment; denying 300 Motion to Dismiss; denying 304 Motion to Dismiss (sclc2, COURT STAFF) (Filed on 11/19/2010) (Entered: 11/19/2010)
349 Transcript of Proceedings held on November 19, 2010, before Judge Samuel Conti. Court Reporter/Transcriber Belle Ball, CSR, RMR, CRR, Telephone number (415)373−2529, belle_ball@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 2/22/2011. (Ball, Belle) (Filed on 11/23/2010) (Entered: 11/23/2010)
350 Letter from Molly DeSario to Judge Conti Requesting a Case Management Conference. (DeSario, Molly) (Filed on 12/22/2010) (Entered: 12/22/2010)
Set/Reset Deadlines as to (259 in 3:07−cv−02050−SC) MOTION to Dismiss Claims of Class Members Who Failed To Respond to Defendant's Discovery and Memorandum of Points And Authorities. Motion Hearing set for 2/4/2010 10:00 AM in Courtroom 1, 17th Floor, San Francisco before Hon. Samuel Conti. (tdm, COURT STAFF) (Filed on 1/3/2011) (Entered: 01/03/2011)
Set/Reset Deadlines as to (259 in 3:07−cv−02050−SC) MOTION to Dismiss Claims of Class Members Who Failed To Respond to Defendant's Discovery and Memorandum of Points And Authorities. Motion Hearing set for 2/4/2011 10:00 AM in Courtroom 1, 17th Floor, San Francisco before Hon. Samuel Conti. (tdm, COURT STAFF) (Filed on 1/3/2011) (Entered: 01/03/2011)
351 CLERKS NOTICE The Pretrial Conference scheduled for February 18, 2011 and the Trial date scheduled for March 7, 2011 are vacated. A Trial Setting Conference is scheduled for June 10, 2011 at 10:00 a.m.in Courtroom 1, 17th Floor, San Francisco before Hon. Samuel Conti. (tdm, COURT STAFF) (Filed on 1/11/2011) (Entered: 01/11/2011)

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01/18/2011 03/08/2011 03/31/2011 03/31/2011
03/31/2011
04/27/2011 07/08/2011 07/18/2011

352 STIPULATION AND ORDER Status Conference set for 6/17/11 is continued to 6/24/2011 10:00 AM in Courtroom 1, 17th Floor, San Francisco before Hon. Samuel Conti.. Signed by Judge Samuel Conti on 1/18/11. (tdm, COURT STAFF) (Filed on 1/18/2011) (Entered: 01/18/2011)
353 ORDER by Judge Samuel Conti granting in part and denying in part (259) Motion to Dismiss in case 3:07−cv−02050−SC (sclc2, COURT STAFF) (Filed on 3/8/2011) (Entered: 03/08/2011)
354 ORDER by Judge Samuel Conti granting (287) Motion for Leave to File in case 3:07−cv−02050−SC (sclc2, COURT STAFF) (Filed on 3/31/2011) (Entered: 03/31/2011)
Set/Reset Deadlines as to (277 in 3:07−cv−02050−SC) MOTION to Bifurcate the Liability and Damages Phases of Trial and to Set the Order of Presentation and Argument at Trial. Motion Hearing set for 5/27/2011 10:00 AM in Courtroom 1, 17th Floor, San Francisco before Hon. Samuel Conti. (tdm, COURT STAFF) (Filed on 3/31/2011) (Entered: 03/31/2011)
Set/Reset Deadlines as to (277 in 3:07−cv−02050−SC) MOTION to Bifurcate the Liability and Damages Phases of Trial and to Set the Order of Presentation and Argument at Trial, (287 in 3:07−cv−02050−SC) MOTION for Leave to File AND SERVE A MOTION FOR RECONSIDERATION OF THE DECERTIFICATION ORDER; MEMORANDUM OF POINTS AND AUTHORITIES. Motion Hearing set for 5/27/2011 10:00 AM in Courtroom 1, 17th Floor, San Francisco before Hon. Samuel Conti. (tdm, COURT STAFF) (Filed on 3/31/2011) (Entered: 03/31/2011)
355 ORDER granting Defendant's Objection to Plaintiffs' Declaration. Signed by Judge Samuel Conti on 04/27/2011. (sclc2, COURT STAFF) (Filed on 4/27/2011) (Entered: 04/27/2011)
356 ORDER by Judge Samuel Conti decertifying class in case 3:07−cv−02050−SC (sclc2, COURT STAFF) (Filed on 7/8/2011) (Entered: 07/08/2011)
357 ORDER by Judge Samuel Conti denying (277) Motion to Bifurcate; denying (290) Motion for Pre−Trial Order No. 1 in case 3:07−cv−02050−SC (sclc2, COURT STAFF) (Filed on 7/18/2011) (Entered: 07/18/2011)