1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RAFAEL MARQUEZ AMARO; JAVIER Case No. 1:21-cv-00382-JLT-HBK BARRERA, on behalf of themselves and 12 others similarly situated, 13 Plaintiff, ORDER DENYING DEFENDANTS’ MOTION TO DISMISS AND ORDER DENYING 14 v. MOTION TO CONSOLIDATE 15 BEE SWEET CITRUS, INC.; and DOES 1 (Doc. 4; Doc. 12) through 10, inclusive, 16 17 Defendants. 18 19 Before the Court are (1) Bee Sweet Citrus, Inc.’s motion to dismiss the complaint under 20 Federal Rule of Civil Procedure 12(b)(6) or 12(f), or in the alternative motion for summary 21 judgment under Rule 56(a), (Doc. 4) as duplicative of the related case Montes v. Bee Sweet 22 Citrus, Inc., 1:20-cv-01162-JLT-EPG and (2) Bee Sweet’s unopposed motion to consolidate 23 (Doc. 12). For the reasons set forth below, the motion to dismiss is DENIED, and the motion to 24 consolidate is DENIED as moot. 25 I. BACKGROUND 26 The named Plaintiffs of this action, Rafael Marquez Amaro and Javier Barrera, initiated 27 this action on March 3, 2021, on behalf of themselves and other similarly situated employees. 28 (Doc. 1 at 3.) Plaintiffs are farm workers who picked citrus fruit for Bee Sweet. (Id. at 3.) Their 1 complaint contains eight claims arise from alleged federal and state labor code violations that 2 occurred during their employment. (Id. at 3-23.) Prior to filing the complaint in this action, 3 counsel for Plaintiffs initiated a similar action against Bee Sweet, asserting nearly identical 4 claims, except that, in this case, Plaintiffs included an additional claim under PAGA (California 5 Labor Code § 2699, et seq.). See generally Complaint, Montes v. Bee Sweet Citrus, Inc., 1:20-cv- 6 01162-JLT-EPG (E.D. Cal. Aug. 18, 2020) (Doc. 1). In Montes, which is also assigned to the 7 undersigned, the plaintiffs brought claims on behalf of a similarly defined proposed class as the 8 class described in Amaro. See id. at 11, ¶ 45; (see also Doc. 1 at 11, ¶ 46). In both actions, 9 liability against Bee Sweet is premised entirely under Labor Code § 2810.3, which provides joint 10 and several liability for “client employers”1 who hire employees through independent contractors, 11 also known as labor contractors. (See Doc. 1 at 5-6, ¶ 14); see also Complaint at 5-6, ¶ 15, 12 Montes, 1:20-cv-01162-JLT-EPG (Doc. 1). On October 14, 2020, in the Montes action, Bee 13 Sweet filed a motion for judgment on the pleadings arguing plaintiff’s claims should be dismissed 14 with prejudice because plaintiffs failed to comply with the notice requirement of Labor Code 15 § 2810.3. Motion for Judgment on the Pleadings, Montes, 1:20-cv-01162-JLT-EPG (Doc. 16.) 16 After the parties filed several additional motions seeking dismissal of the Montes action2, 17 Plaintiffs initiated the instant Amaro case and pled compliance with the notice requirement under 18 § 2810.3. (Doc. 1 at 6, ¶ 15.) On April 2, 2021, Bee Sweet filed the instant motion to dismiss the 19 Amaro case as duplicative of the Montes case (Doc. 4). Bee Sweet later filed a motion to 20 consolidate Amaro with the Montes case (Doc. 12). Plaintiffs oppose the motion to dismiss (Doc. 21 5) but did not oppose the motion to consolidate (Doc. 15). All motions in Montes and Amaro have 22 been fully briefed and were ripe for decision as of late October 2021 but remained unaddressed 23 for some time due to the judicial resource emergency in this district. This case was reassigned to 24 the undersigned on January 7, 2022. (Doc. 20.) The Court has reviewed the briefings submitted 25
26 1 A client employer is “a business entity ... that obtains or is provided workers to perform labor within its usual course of business from a labor contractor.” Cal. Labor Code § 2810.3(a)(1)(A). 27 2 Plaintiffs also filed a motion to dismiss without prejudice under Rule 41, and Bee Sweet filed two subsequent motions requesting dismissal on several bases. For the reasons contained in the Court order regarding Bee Sweet’s 28 motion for judgment on the pleadings for failure to comply with the § 2810.3 notice requirement, the Court need not 1 by the parties and finds the motion to dismiss and motion to consolidate should be DENIED, 2 because the Montes complaint has been dismissed with prejudice. 3 II. MOTION TO DISMISS 4 A. Legal Standards 5 Although Bee Sweet’s moves to dismiss under Federal Rule of Civil Procedure 12(b)(6), 6 12(f), and 56(a), its basis for dismissal depends on the first-to-file rule and whether the instant 7 case is duplicative of the previously filed Montes case. (Doc. 4-1.) The first-to-file rule allows a 8 district court to stay proceedings or dismiss a case “if a similar case with substantially similar 9 issues and parties was previously filed in another district court.” Kohn L. Grp., Inc. v. Auto Parts 10 Mfg. Miss., Inc., 787 F.3d 1237, 1239 (9th Cir. 2015); Pacesetter Sys., Inc. v. Medtronic, Inc., 678 11 F.2d 93, 94-95 (9th Cir. 1982). The first-to-file rule “serve[s] the purpose of promoting efficiency 12 well and should not be disregarded lightly.” Alltrade, Inc. v. Uniweld Prods., Inc., 946 F.2d 622, 13 625 (9th Cir. 1991). Though the rule is not applied mechanically, courts typically analyze three 14 factors: chronology of the lawsuits, similarity of the parties, and similarity of the issues. Kohn, 15 787 at 1240. 16 However, “the most basic aspect of the first-to-file rule is that it is discretionary.” 17 Alltrade, 946 F.2d at 628. Even if the three factors are met, “[t]he district court retains the 18 discretion [] to disregard the first-to-file rule in the interests of equity.” Adoma v. Univ. of Phx., 19 Inc., 711 F. Supp. 2d 1142, 1146 (E.D. Cal. 2010). In particular, the Ninth Circuit cautioned 20 district courts against exercising discretion to dismiss a case “if the first-filed proceeding remains 21 at risk of dismissal.” Gampala v. Dep’t of Homeland Sec., 2018 WL 4680182, at *2 (N.D. Cal. 22 Sept. 28, 2018) (citing Alltrade, 946 F.2d at 628-29 (reversing district court’s dismissal under 23 first-to-file rule because a risk of dismissal existed in the first case due to outstanding questions of 24 jurisdiction). 25 B. Discussion 26 Bee Sweet argues this case should be dismissed because it is “virtually identical” to the 27 previously filed Montes case. (Doc. 4-1 at 4, 10.) With respect to the three factors of the first-to- 28 file rule, the chronology of the suits and similarity of the issues weigh in favor of finding the 1 Amaro case duplicative. The Amaro case was filed approximately seven months after the Montes 2 case and involves nearly identical issues. Though the Amaro complaint includes an additional 3 PAGA claim, the factual basis giving rise to PAGA penalties involves the same alleged 4 employment violations as the seven claims that appear identically in both cases. See Nakash v. 5 Marciano, 882 F.2d 1411, 1416 (9th Cir. 1989) (noting the parties and issues in each action only 6 need to be “substantially similar,” not identical nor need “exact parallelism”); see also eNom, Inc. 7 v. Philbrick, 2008 WL 4933976, at *2 (W.D. Wash. Nov.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RAFAEL MARQUEZ AMARO; JAVIER Case No. 1:21-cv-00382-JLT-HBK BARRERA, on behalf of themselves and 12 others similarly situated, 13 Plaintiff, ORDER DENYING DEFENDANTS’ MOTION TO DISMISS AND ORDER DENYING 14 v. MOTION TO CONSOLIDATE 15 BEE SWEET CITRUS, INC.; and DOES 1 (Doc. 4; Doc. 12) through 10, inclusive, 16 17 Defendants. 18 19 Before the Court are (1) Bee Sweet Citrus, Inc.’s motion to dismiss the complaint under 20 Federal Rule of Civil Procedure 12(b)(6) or 12(f), or in the alternative motion for summary 21 judgment under Rule 56(a), (Doc. 4) as duplicative of the related case Montes v. Bee Sweet 22 Citrus, Inc., 1:20-cv-01162-JLT-EPG and (2) Bee Sweet’s unopposed motion to consolidate 23 (Doc. 12). For the reasons set forth below, the motion to dismiss is DENIED, and the motion to 24 consolidate is DENIED as moot. 25 I. BACKGROUND 26 The named Plaintiffs of this action, Rafael Marquez Amaro and Javier Barrera, initiated 27 this action on March 3, 2021, on behalf of themselves and other similarly situated employees. 28 (Doc. 1 at 3.) Plaintiffs are farm workers who picked citrus fruit for Bee Sweet. (Id. at 3.) Their 1 complaint contains eight claims arise from alleged federal and state labor code violations that 2 occurred during their employment. (Id. at 3-23.) Prior to filing the complaint in this action, 3 counsel for Plaintiffs initiated a similar action against Bee Sweet, asserting nearly identical 4 claims, except that, in this case, Plaintiffs included an additional claim under PAGA (California 5 Labor Code § 2699, et seq.). See generally Complaint, Montes v. Bee Sweet Citrus, Inc., 1:20-cv- 6 01162-JLT-EPG (E.D. Cal. Aug. 18, 2020) (Doc. 1). In Montes, which is also assigned to the 7 undersigned, the plaintiffs brought claims on behalf of a similarly defined proposed class as the 8 class described in Amaro. See id. at 11, ¶ 45; (see also Doc. 1 at 11, ¶ 46). In both actions, 9 liability against Bee Sweet is premised entirely under Labor Code § 2810.3, which provides joint 10 and several liability for “client employers”1 who hire employees through independent contractors, 11 also known as labor contractors. (See Doc. 1 at 5-6, ¶ 14); see also Complaint at 5-6, ¶ 15, 12 Montes, 1:20-cv-01162-JLT-EPG (Doc. 1). On October 14, 2020, in the Montes action, Bee 13 Sweet filed a motion for judgment on the pleadings arguing plaintiff’s claims should be dismissed 14 with prejudice because plaintiffs failed to comply with the notice requirement of Labor Code 15 § 2810.3. Motion for Judgment on the Pleadings, Montes, 1:20-cv-01162-JLT-EPG (Doc. 16.) 16 After the parties filed several additional motions seeking dismissal of the Montes action2, 17 Plaintiffs initiated the instant Amaro case and pled compliance with the notice requirement under 18 § 2810.3. (Doc. 1 at 6, ¶ 15.) On April 2, 2021, Bee Sweet filed the instant motion to dismiss the 19 Amaro case as duplicative of the Montes case (Doc. 4). Bee Sweet later filed a motion to 20 consolidate Amaro with the Montes case (Doc. 12). Plaintiffs oppose the motion to dismiss (Doc. 21 5) but did not oppose the motion to consolidate (Doc. 15). All motions in Montes and Amaro have 22 been fully briefed and were ripe for decision as of late October 2021 but remained unaddressed 23 for some time due to the judicial resource emergency in this district. This case was reassigned to 24 the undersigned on January 7, 2022. (Doc. 20.) The Court has reviewed the briefings submitted 25
26 1 A client employer is “a business entity ... that obtains or is provided workers to perform labor within its usual course of business from a labor contractor.” Cal. Labor Code § 2810.3(a)(1)(A). 27 2 Plaintiffs also filed a motion to dismiss without prejudice under Rule 41, and Bee Sweet filed two subsequent motions requesting dismissal on several bases. For the reasons contained in the Court order regarding Bee Sweet’s 28 motion for judgment on the pleadings for failure to comply with the § 2810.3 notice requirement, the Court need not 1 by the parties and finds the motion to dismiss and motion to consolidate should be DENIED, 2 because the Montes complaint has been dismissed with prejudice. 3 II. MOTION TO DISMISS 4 A. Legal Standards 5 Although Bee Sweet’s moves to dismiss under Federal Rule of Civil Procedure 12(b)(6), 6 12(f), and 56(a), its basis for dismissal depends on the first-to-file rule and whether the instant 7 case is duplicative of the previously filed Montes case. (Doc. 4-1.) The first-to-file rule allows a 8 district court to stay proceedings or dismiss a case “if a similar case with substantially similar 9 issues and parties was previously filed in another district court.” Kohn L. Grp., Inc. v. Auto Parts 10 Mfg. Miss., Inc., 787 F.3d 1237, 1239 (9th Cir. 2015); Pacesetter Sys., Inc. v. Medtronic, Inc., 678 11 F.2d 93, 94-95 (9th Cir. 1982). The first-to-file rule “serve[s] the purpose of promoting efficiency 12 well and should not be disregarded lightly.” Alltrade, Inc. v. Uniweld Prods., Inc., 946 F.2d 622, 13 625 (9th Cir. 1991). Though the rule is not applied mechanically, courts typically analyze three 14 factors: chronology of the lawsuits, similarity of the parties, and similarity of the issues. Kohn, 15 787 at 1240. 16 However, “the most basic aspect of the first-to-file rule is that it is discretionary.” 17 Alltrade, 946 F.2d at 628. Even if the three factors are met, “[t]he district court retains the 18 discretion [] to disregard the first-to-file rule in the interests of equity.” Adoma v. Univ. of Phx., 19 Inc., 711 F. Supp. 2d 1142, 1146 (E.D. Cal. 2010). In particular, the Ninth Circuit cautioned 20 district courts against exercising discretion to dismiss a case “if the first-filed proceeding remains 21 at risk of dismissal.” Gampala v. Dep’t of Homeland Sec., 2018 WL 4680182, at *2 (N.D. Cal. 22 Sept. 28, 2018) (citing Alltrade, 946 F.2d at 628-29 (reversing district court’s dismissal under 23 first-to-file rule because a risk of dismissal existed in the first case due to outstanding questions of 24 jurisdiction). 25 B. Discussion 26 Bee Sweet argues this case should be dismissed because it is “virtually identical” to the 27 previously filed Montes case. (Doc. 4-1 at 4, 10.) With respect to the three factors of the first-to- 28 file rule, the chronology of the suits and similarity of the issues weigh in favor of finding the 1 Amaro case duplicative. The Amaro case was filed approximately seven months after the Montes 2 case and involves nearly identical issues. Though the Amaro complaint includes an additional 3 PAGA claim, the factual basis giving rise to PAGA penalties involves the same alleged 4 employment violations as the seven claims that appear identically in both cases. See Nakash v. 5 Marciano, 882 F.2d 1411, 1416 (9th Cir. 1989) (noting the parties and issues in each action only 6 need to be “substantially similar,” not identical nor need “exact parallelism”); see also eNom, Inc. 7 v. Philbrick, 2008 WL 4933976, at *2 (W.D. Wash. Nov. 17, 2008) (granting transfer under first- 8 to-file rule despite the addition of a claim for declaratory judgment not present in the first-filed 9 action because the cases involved questions of liability under the same statutes). 10 In addition, the factor regarding similarity of the parties somewhat indicates the Amaro 11 case’s duplicity of Montes. The parties appear substantially similar given that the plaintiffs in 12 both cases assert claims against Bee Sweet as the singular defendant. The two complaints also 13 identify a nearly identical class. Adoma, 711 F.Supp.2d at 1147 (concluding “the first-to-file rule 14 applies to similar proposed group actions before certification”); see also Weinstein v. Metlife, 15 Inc., 2006 WL 3201045, *4 (N.D. Cal. Nov. 6, 2006) (“In a class action, however, it is the class, 16 not the representative, that is compared.”). The proposed classes of Amaro and Montes include 17 individuals who worked at least one shift as a harvest worker in the four years prior to the 18 complaint. See Complaint at 11, ¶ 45, Montes, 1:20-cv-01162-JLT-EPG (Doc. 1); (see also Doc. 19 1 at 11, ¶ 46). However, a slight difference appears in the language defining these classes. The 20 Montes complaint defines these individuals as “all persons who are employed or have been 21 employed by” Bee Sweet; whereas the Amaro complaint defines them as “all persons who 22 performed labor for” Bee Sweet. (Doc. 5 at 13 (emphasis added).) Plaintiffs argue the different 23 definitions result in a broader class in the Amaro case, not captured by the class definition in 24 Montes. (Id.) Bee Sweet argues this distinction has no material difference. (Doc. 6 at 6.) Plaintiffs 25 argue another distinction exists between the parties because in Montes, Bee Sweet joined an 26 additional party (i.e., Harvest Kings), who is not party to the Amaro case. (Doc. 5 at 13.) 27 Regardless of whether the parties are substantially similar such that the first-to-file rule 28 should apply, the Court finds the considerations of equity do not warrant dismissing or staying 1 this case. When Bee Sweet filed its motion to dismiss the Amaro case, no less than four separate 2 motions, seeking full or partial dismissal, remained pending in the Montes case. The risk of 3 dismissal in the first action strongly weighs against dismissal in the second action because it 4 would foreclose all opportunities for the Plaintiffs to litigate their claims. Glob. Music Rts., LLC 5 v. Radio Music License Comm., Inc., 2017 WL 3449606, at *8 (C.D. Cal. Apr. 7, 2017) (staying 6 rather than dismissal the second action where motions to dismiss challenging personal 7 jurisdiction, venue, and failure to state a claim were pending in the first action). In addition to 8 foreclosing the named plaintiff’s claims, dismissal of both Amaro and Montes would risk 9 excluding certain class members from recovery because their claims may be time-barred by a 10 later-filed suit. (See Doc. 5 at 15); see also Adoma, 711 F. Supp. 2d at 1150 (recognizing a 11 concern that the statute of limitations will continue to run on new theories of liability presented in 12 the second action while awaiting resolution of the first action). The risk of dismissal of the 13 Montes alone renders dismissal of the Amaro case inappropriate under the first-to-file rule. 14 Moreover, the Montes case faces more than a mere risk of dismissal. Because the 15 undersigned is assigned to both Montes and Amaro,3 it evaluated the pending motions in tandem, 16 and concurrently has ordered dismissing the Montes action with prejudice. Consequently, any 17 request to stay the action, as an alternative to dismissal, pending an outcome in Montes is moot. 18 Because the Court finds, in its discretion, that neither dismissal nor a stay of the Amaro case is 19 warranted under the first-to-file rule, Bee Sweet’s motion to dismiss is DENIED. 20 III. MOTION TO CONSOLIDATE 21 Bee Sweet also filed a motion to consolidate the Amaro case with the Montes case, which 22 Plaintiffs did not oppose. A district court typically has “broad discretion to consolidate actions” 23 when they share common questions of law or fact. Pierce v. Cnty. of Orange, 526 F.3d 1190, 24 1203 (9th Cir. 2008); In Re Adams Apple, Inc., 829 F.2d 1484, 1487 (9th Cir. 1987). However, 25 dismissal of the related action renders moot the motion to consolidate. See Thompson v. APM 26 3 Though the Court need not evaluate this factor independently, it recognizes that the traditional justifications of the 27 first-to-file rule—comity, efficiency, and uniformity—are less present when the two cases share the same presiding district judge. Rodriguez v. Taco Bell Corp., 2013 WL 5877788, at *2 (E.D. Cal. Oct. 30, 2013). 28 1 || Terminals Pac. Ltd., 2011 WL 52601, at *2 (N.D. Cal. Jan. 6, 2011) (denying motion to 2 || consolidate as moot where related action remanded to state court); see also Villagordoa Bernal v. 3 || Rodriguez, 2016 WL 3360951, at *3-4 (C.D. Cal. June 10, 2016) (same). Because the Court 4 | dismissed the complaint in the Montes case, the motion to consolidate the instant case with 5 || Montes is DENIED as moot. 6 IV. ORDER 7 For the reasons stated above, the Court ORDERS: 8 1. Bee Sweet’s motion to dismiss or in the alternative motion for summary judgment 9 (Doc. 4) is DENIED. 10 2. Bee Sweet’s motion to consolidate (Doc. 12) is DENIED as moot. 1] D IT IS SO ORDERED. B Dated: _ August 18, 2022 Cerin | Tower TED STATES DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28