Carter et al v. XPO Logistics, Inc., No. 3:2016cv01231 - Document 171 (N.D. Cal. 2018)

Court Description: ORDER granting (170 in 3:16-cv-01231-WHO) STIPULATION TO REVISE THE CLASS CERTIFICATION SCHEDULE AND REQUEST FOR CASE MANAGEMENT CONFERENCE. Case Management Statement due by 11/6/2018. Case Management Conference set for 11/13/2018 02:00 PM in San Francisco, Courtroom 02, 17th Floor. Signed by Judge William H. Orrick on 08/30/2018. (jmdS, COURT STAFF) (Filed on 8/30/2018)
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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 Beth Ross, SBN 141337 Jennifer Keating, SBN 250857 Amy Endo, SBN 272998 LEONARD CARDER, LLP 1330 Broadway, Suite 1450 Oakland, CA 94612 Telephone: (510) 272-0169 Facsimile: (510) 272-0174 bross@leonardcarder.com jkeating@leonardcarder.com aendo@leonardcarder.com David Mara, SBN 230498 Jamie Serb, SBN 289601 William Turley, SBN 122408 THE TURLEY LAW FIRM, APLC 7428 Trade Street San Diego, CA 92121 Telephone: (619) 234-2833 Facsimile: (619) 234-4048 dmara@turleylawfirm.com jserb@turleylawfirm.com bturley@turleylawfirm.com Attorneys for Plaintiffs RON CARTER, et al. Attorneys for Plaintiffs KEVIN KRAMER, et al. Matthew R. Bainer Bar No. 220972 THE BAINER LAW FIRM 1901 Harrison Street, Suite 1100 Oakland, CA 94612 Telephone: (510) 922-1802 Facsimile: (510) 844-7701 mbainer@bainerlawfirm.com Attorneys for Plaintiff HECTOR IBANEZ Thomas W. Falvey, SBN65744 Michael H. Boyamian, SBN 256107 Armand R. Kizirian, SBN 293992 LAW OFFICES OF THOMAS W. FALVEY 550 North Brand Blvd., Suite 1500 Glendale, CA 91203 Telephone: (818) 547-5200 Facsimile: (818) 500-9307 thomaswfalvey@gmail.com mike.falveylaw@gmail.com armand.falveylaw@gmail.com Joseph M. Lovretovich, SBN 73403 David F. Tibor, SBN 230563 JML LAW, APLC 21052 Oxnard Street Woodland Hills, CA 91367 Telephone: (818) 610-8800 Facsimile: (818) 610-3030 jml@jmllaw.com david@jmllaw.com Attorneys for Plaintiffs RAMON GARCIA, et al. Fraser A. McAlpine, CA Bar No. 248554 JACKSON LEWIS P.C. 50 California Street, 9th Floor San Francisco, CA 94111 Telephone: (415) 394-9400 Facsimile: (415) 394-9401 fraser.mcalpine@jacksonlewis.com Attorneys for Plaintiffs RAMON GARCIA, et al. Attorneys for Defendant XPO LAST MILE, INC. Adam L. Lounsbury, VA Bar No. 89847 JACKSON LEWIS P.C. 701 East Byrd Street, 17th Floor Richmond, VA 23219 Telephone: (804) 649-0404 Facsimile: (804) 649-0403 jeffrey.newhouse@jacksonlewis.com adam.lounsbury@jacksonlewis.com Appearing Pro Hac Vice Attorneys for Defendant XPO LAST MILE, INC. Case No. 3:16-cv-01231-WHO STIPULATION AND ORDER TO REVISE THE CLASS CERTIFICATION SCHEDULE AND REQUEST FOR CASE MANAGEMENT CONFERENCE 1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 4 5 6 RON CARTER, JUAN ESTRADA, JERRY GREEN, BURL MALMGREN, BILL McDONALD, and JOEL MORALES, on behalf of themselves and others similarly situated, 9 STIPULATION AND ORDER TO REVISE THE CLASS CERTIFICATION SCHEDULE AND REQUEST FOR CASE MANAGEMENT CONFERENCE Plaintiffs, 7 8 Case No. 3:16-cv-01231-WHO v. Amended Complaint Filed: June 9, 2016 Judge: Hon. William H. Orrick XPO LAST MILE, INC. and DOES 1 through 10, inclusive, 10 Defendants. 11 12 13 14 RAMON GARCIA, an individual, VICTOR RAMIREZ, an individual; ADRIAN VALENTE, an individual; MARIO PINON, an individual; MYNOR CABRERA, an individual; Individually, and on Behalf of All Similarly Situated Individuals, 15 16 17 18 19 Case No. 3:16-cv-04440-WHO Action Filed: July 1, 2016 Date Removed: August 5, 2016 Judge: Hon. William H. Orrick Plaintiffs, v. MACY’S WEST STORES, INC., an Ohio corporation; JOSEPH ELETTO TRANSFER, INC., a New York corporation; XPO LOGISTICS, LLC, and Ohio corporation; and DOES 1 through 25, Inclusive, 20 Defendants. 21 22 23 KEVIN KRAMER on behalf of himself, all others similarly situated, and on behalf of the general public, Plaintiffs, 24 25 26 27 28 Case No. 3:16-cv-07039-WHO Consolidated with 3:17-cv-04009-JSC v. XPO LOGISTICS, INC.; and DOES 1 – 100, Action Filed: September 22, 2016 Date Removed: December 8, 2016 Judge: Hon. William H. Orrick Defendants. Case No. 3:16-cv-01231-WHO STIPULATION AND ORDER TO REVISE THE CLASS CERTIFICATION SCHEDULE AND REQUEST FOR CASE MANAGEMENT CONFERENCE 1 2 HECTOR IBANEZ on behalf of himself, all others similarly situated, and on behalf of the general public Plaintiffs, 3 v. 4 5 This Document Relates To: Kramer, 3:16-cv-07039-WHO; Ibanez, 3:17-cv-04009-JSC; Carter, 3:16-cv-01231-WHO; Garcia, 3:16-cv-04440-WHO XPO LAST MILE, INC.; and DOES 1 – 100, Defendants. 6 7 8 STIPULATION AND ORDER 9 WHEREAS, the parties to Carter v. XPO Logistics, Inc., No. 16-cv-01231-WHO 10 (“Carter”), Garcia v. Macy’s West Stores, Inc., et al (“Garcia”), and the consolidated Kramer v. 11 XPO Logistics, Inc., No. 16-cv-07039-WHO (“Kramer”) and Ibanez v. XPO Last Mile, Inc., No. 12 17-cv-04009-JSC (“Ibanez”) (consolidated matter referred to as “Kramer/Ibanez”), have agreed 13 that the class certification schedule should be revised in order to facilitate the parties’ continuing 14 effort to mediate this dispute. The parties are seeking this adjustment to the briefing schedule due 15 to unanticipated issues experienced in connection with marshalling the data necessary to support a 16 complete and accurate damages analysis by the parties. The parties rescheduled the mediation for 17 two sessions to be held on October 25, 2018, and November 13, 2018, and jointly request that the 18 Court adjust the briefing and hearing schedule to permit the parties to focus on settlement 19 discussions before briefing the case for class certification. A discussion of the obstacles and 20 proposed scheduling amendment follows. 21 On May 30, 2018, the Court entered an Order that set the current certification and motion 22 hearing dates.1 That schedule was proposed and agreed by the parties in order to facilitate a 23 mediated resolution to this case. At that time, the mediation was scheduled for August 30 and 31, 24 2018 in San Francisco. Stipulation and Order, May 30, 2018 (docketed only at Kramer/Ibanez 25 ECF No. 65). 26 1 27 28 That Order revised the prior schedule that was set March 21, 2018 (Carter ECF No. 165); (Garcia ECF No. 90); (Kramer/Ibanez ECF No. 63). Case No. 3:16-cv-01231-WHO STIPULATION AND ORDER TO REVISE THE CLASS CERTIFICATION SCHEDULE AND REQUEST FOR CASE MANAGEMENT CONFERENCE 1 Following the Order setting the mediation and briefing schedule, the parties set out to 2 conduct the damages discovery necessary to support an informed damages discussion at the 3 mediation—prior to scheduling the mediation, the parties’ discovery efforts were largely focused 4 on issues bearing on class certification. On June 8, 2018, Carter plaintiffs issued a robust request 5 for data to support their damages model that would be used to inform their position in settlement 6 discussions. This request sought information about class member identities, and various metrics 7 that would bear on the days, hours of work, as well as amounts paid to individual carriers and 8 amounts those carriers paid out in various expenses. On July16, 2018, Kramer/Ibanez plaintiffs 9 issued a separate request for information to support their damages model. This request sought 10 information regarding class member identities (and counts), as well as data reflecting hours of 11 work and amounts paid to secondary drivers and helpers in the class. Finally, on July 19, 2018, the 12 Garcia plaintiffs issued a separate request for information from a third party source that could 13 provide information regarding hours of work for each secondary driver or helper working out of 14 the Macy’s Union City location during the class period. 15 Following the Carter request, XPO LM began to work on a plan to marshal the requested 16 data. As is often the case, the initial challenge was to determine what data – housed in a system 17 that is not intended to be a used for these purposes – could be extracted and compiled in a useful 18 and accessible form. It took several weeks and numerous discussions between counsel, XPO LM 19 information technology personnel, and XPO LM’s litigation consultants to establish a basic 20 protocol for extracting the information. Once the protocol was established, XPO LM’s information 21 technology team then had to develop technical queries that would establish relationships between 22 various databases so that the data was useable. That is, the technical team was tasked with creating 23 an output that identified the who, where, and when for each and every truck that delivered for one 24 of XPO LM’s customers in California on each and every day during the class period (which dates 25 back to March 2012 for Carter). The result was an output of 10’s of millions of lines of data. 26 27 28 After this initial data set was captured, XPO LM began the process of quality testing the -2Case No. 3:16-cv-01231-WHO STIPULATION AND PROPOSED ORDER TO REVISE THE CLASS CERTIFICATION SCHEDULE AND REQUEST FOR CASE MANAGEMENT CONFERENCE 1 data output to evaluate its completeness. On July 27, 2018, while this testing was performed XPO 2 LM produced to plaintiffs an initial dataset. Within days, the parties identified massive gaps in the 3 data. Some high-level examples of the issues that were identified include: 4 5 6 Certain putative class members’ and related contract carrier information was not included in the dataset (including some information about named-plaintiffs); The dataset that was extracted was not representative of the work performed by 7 carriers and was incomplete (as identified by comparison to other records 8 exchanged in discovery); 9 Settlement data did not match to the data provided by the third party settlement 10 company (as identified by a manual comparison of a sample of the data to the 11 individual carrier settlement statements); 12 Information regarding contract interstate routes not included in the data; 13 Estimated length of day and individualized routed stop data was not linked to the 14 15 delivery team performing the services; The route and stop data collected by some of XPO LM’s customers through third 16 party software (ex., Decartes, Cheetah, Mobilink) was not represented in the dataset, 17 which meant there were informational gaps depending on the profit center. 18 Since this first production, XPO LM, its consultants and legal team have been working to 19 resolve each issue to ensure that the data upon which all of the parties base a settlement discussion 20 is accurate and robust as is available. During this data integrity and troubleshooting phase, the 21 parties have regularly communicated about the issues that they have spotted. 22 At the beginning of August, only thirty days before the mediation, the parties recognized 23 that they would not have enough time to complete the data integrity efforts, to exchange millions of 24 lines of data and to develop their damages models in consultation with their experts, in time to have 25 a productive mediation at the end of August. Consequently, the parties contacted the mediator to 26 identify the next available dates for a two day mediation. In order to obtain earlier dates, the 27 28 -3Case No. 3:16-cv-01231-WHO STIPULATION AND PROPOSED ORDER TO REVISE THE CLASS CERTIFICATION SCHEDULE AND REQUEST FOR CASE MANAGEMENT CONFERENCE 1 parties offered to be flexible on location of the mediation and agreed that non-contiguous dates 2 could be selected if that meant an earlier mediation was possible. 3 4 On August 23, 2018 the parties and mediator Michael Dickstein, Esq., rescheduled the mediation for October 25, in San Francisco, and November 13 in Toronto. 5 According to the current Order, plaintiffs’ motions for class certification are due on October 6 2, 2018, defendants’ oppositions are due on December 3, 2018, and plaintiffs’ reply briefs are due 7 on December 24, 2018, with a hearing to follow on January 17, 2019. Stipulation and Order, May 8 30, 2018 (docketed only at Kramer/Ibanez ECF No. 65). 9 10 NOW THEREFORE, the parties stipulate to and request that the Court order the following revised certification motion, briefing and hearing dates: 11 Motions for class certification due December 14, 2018; 12 Oppositions are due February 8, 2019; 13 Reply briefs are due March 1, 2019; 14 Hearing is set for April 3, 2019 at 2:00 PM. 15 The parties submit that good cause exists to continue the class certification dates. The 16 17 parties have vigorously litigated the case, and, as previously anticipated that a realistic exploration of settlement will involve the production, review, and analysis of millions of lines of additional 18 19 20 data. That data has yet to be exchanged. The substantial amount of time needed to prepare the matter for class certification and Defendant’s opposition thereto would interfere with the parties’ 21 ability to devote the time needed to prepare the matter for settlement discussions at the scheduled 22 mediation. Should the matter not settle at or around the mediation, the class certification motion 23 will be filed, according to the proposed schedule outlined above, 30 days after the scheduled two- 24 days of mediation. Thus, should the matter not settle at or around the scheduled mediation, the 25 matter will immediately proceed towards certification per the above proposed schedule. 26 27 28 Additionally, the Parties further request the Court set a Case Management Conference to -4Case No. 3:16-cv-01231-WHO STIPULATION AND PROPOSED ORDER TO REVISE THE CLASS CERTIFICATION SCHEDULE AND REQUEST FOR CASE MANAGEMENT CONFERENCE 1 2 discuss modifications to the case schedule on Thursday, November 15, 2018 or as soon thereafter as the Court’s calendar will permit. Respectfully submitted, 3 4 Dated: August 30, 2018 THE TURLEY & MARA LAW FIRM, APLC 5 6 /s/ William Turley William Turley, Esq. David Mara, Esq. Jamie Serb, Esq. Representing Kramer/Ibanez Plaintiffs 7 8 9 10 Dated: August 30, 2018 THE BAINER LAW FIRM 11 /s/ Matthew Bainer Matthew Bainer, Esq. Representing Kramer/Ibanez Plaintiffs 12 13 14 Dated: August 30, 2018 LEONARD CARDER 15 /s/ Beth Ross Beth Ross, Esq. Jennifer Keating, Esq. Amy Endo, Esq. Representing Carter Plaintiffs 16 17 18 19 Dated: August 30, 2018 LAW OFFICES OF THOMAS W. FALVEY 20 /s/ Michael Boyamian Michael Boyamian, Esq. Armand Kizirian, Esq. Representing Garcia Plaintiffs 21 22 23 24 Dated: August 30, 2018 JACKSON LEWIS P.C. 25 26 27 28 /s/ Fraser A. McAlpine Fraser A. McAlpine Adam L. Lounsbury -5Case No. 3:16-cv-01231-WHO STIPULATION AND PROPOSED ORDER TO REVISE THE CLASS CERTIFICATION SCHEDULE AND REQUEST FOR CASE MANAGEMENT CONFERENCE Representing Defendants XPO Last Mile, Inc., Macy’s West Stores, Inc. SIGNATURE ATTESTATION Local Rule 5-1(i)(3) 1 2 3 4 I Fraser A. McAlpine, attest that each of the other signatories to this document concur in the filing of this document. 5 /s/ Fraser A. McAlpine Fraser A. McAlpine 6 7 ORDER 8 9 10 11 12 13 14 The class certification schedule is amended as follows: Motions for class certification due December 14, 2018; Oppositions are due February 8, 2019; Reply briefs are due March 1, 2019; Hearing is set for April 3, 2019 at 2:00 PM. A further CMC is set for Tuesday November 13, 2018 at 2:00 p.m. IT IS SO ORDERED. 15 16 Dated: August 30, 2018 The Honorable William H. Orrick UNITED STATES DISTRICT JUDGE 17 18 19 4853-2001-4192, v. 4 20 21 22 23 24 25 26 27 28 -6Case No. 3:16-cv-01231-WHO STIPULATION AND PROPOSED ORDER TO REVISE THE CLASS CERTIFICATION SCHEDULE AND REQUEST FOR CASE MANAGEMENT CONFERENCE