Barragan v. Home Depot U.S.A., Inc.

Opinion

1 2 3 4 5 6 7 10 11 DONNIE SANCHEZ BARRAGAN, Lead Case No.: 19-cv-01766-AJB-AGS ARACELI BARRAGAN, and JEREMEY ORDER: 12 BURCHAM, individually and on behalf 13 of others similarly situated, (1) DENYING PROPOSED Plaintiffs, INTERVENOR’S MOTION TO 14 INTERVENE; v. 15 HOME DEPOT U.S.A., INC., a Delaware (2) DENYING PROPOSED 16 Corporation, INTERVENOR’S MOTION TO 17 Defendant. TRANSFER AND/OR STAY; and

18 (3) DENYING AS MOOT PROPOSED 19 INTERVENOR’S MOTION TO APPOINT INTERIM CLASS 20 COUNSEL 21 (Doc. No. 111) 22

23 Presently before the Court is nonparty John Utne’s (“Utne”) motion to intervene, for 24 appointment of interim class counsel, and to transfer and/or stay action. (Doc. No. 111). 25 Plaintiffs Donnie Barragan, Araceli Barragan, and Jeremy Burcham from the instant case, 26 Plaintiffs Sandoval, Davey, and Flores of the consolidated cases (collectively, “Plaintiffs”), 27 and Defendant Home Depot U.S.A., Inc. (“Defendant”) oppose the motions. (Doc. Nos. 28 1 123–125). The Court finds the matters suitable for decision on the papers and without oral 2 argument, pursuant to Local Civil Rule 7.1.d.1. As set forth more fully below, the Court 3 DENIES Utne’s motion. 5 Utne, the named plaintiff in a separate class action lawsuit against Defendant, seeks 6 to intervene in the instant action, appoint his counsel as interim lead counsel for the instant 7 case and consolidated cases, and stay, or alternatively, transfer each of the actions to the 8 Northern District of California. This motion arose in the context of an upcoming mediation 9 that was held on May 10, 2022, in four intertwined putative class actions: the instant action, 10 Barragan v. Home Depot U.S.A., Inc., No. 19-cv-01766-AJB-AGS; Davey v. The Home 11 Depot U.S.A., Inc., No. 3:10-cv-02541-AJB-AGS; Sandoval v. Home Depot U.S.A. Inc., 12 No. 3:21-cv-00461-AJB-AGS; and Flores v. Home Depot U.S.A., Inc., No. 3:21-cv-00462- 13 AJB-AGS, (collectively, the “Consolidated Cases”). All cases concern alleged wage and 14 hour violations by Defendant Home Depot. 15 On January 25, 2022, counsel for each of the Consolidated Cases participated in a 16 conference call to discuss settlement and agreed to mediate the consolidated claims, setting 17 mediation for May 10, 2022. (Doc. No. 107 at 5.) The cases did not settle. 18 On April 13, 2022, Utne filed the instant Motion in Right to Intervene, for 19 Appointment of Interim Class Counsel, and Transfer and/or Stay Action. (Doc. No. 111.) 20 Defendant and all Plaintiffs oppose. (Doc. Nos. 123–25.) Utne filed a reply. (Doc. No. 21 126.) At this stage, the parties have litigated a motion to dismiss, two motions for summary 22 judgment, and a motion for class certification. 23 A. The Consolidated Cases 24 1. The Instant Case 25 On March 26, 2021, Defendant filed a notice of related cases, connecting the instant 26 lawsuit with Davey, filed on June 9, 2020; Sandoval, filed on January 31, 2020; and Flores, 27 filed on June 23, 2020. (Doc. No. 50.) These cases were consolidated on November 3, 28 2021, for the limited purposes of motion practice and discovery. (Doc. No. 100.) 1 In the instant case, Plaintiffs and the classes received compensation in the form of 2 an hourly wage and cash incentive bonuses, including Home Depot’s minimum Success 3 Sharing bonus. (Third Amended Complaint (“TAC”), Doc. No. 92, ¶ 30.) Plaintiffs assert 4 that because the reporting time pay and meal period premium pay were paid at Plaintiffs’ 5 base hourly rate and not their regular rate, which should have reflected an increase from 6 the minimum Success Sharing payments, they were underpaid wages. (Id. ¶¶ 50–52.) The 7 TAC alleges causes of action for: (1) failure to pay overtime by Plaintiff Burcham, and 8 (2) failure to pay all wages earned each pay period by all Plaintiffs. (See generally id.) 9 The TAC defined the Overtime Class as “[a]ll non-exempt Home Depot employees 10 in California who received a minimum (e.g., $100) ‘Success Sharing’ bonus and worked 11 overtime during the same Success Sharing plan period, within three years of the filing of 12 the complaint in this action until June 20, 2018.” (Id. ¶ 12(a).) Subsequently, the Court 13 granted Plaintiff Burcham’s motion for class certification as to this class. (See Doc. No. 14 106.) 15 Moreover, the Unpaid Regular Wages Class consists of two subclasses. The 16 Meal/Rest Premium Subclass is defined as “[a]ll non-exempt Home Depot employees in 17 California who (1) received a flat sum, non-percentage based Success Sharing payment 18 (e.g. $100) for a given Success Sharing plan period and (2) received a meal or rest period 19 premium payment for a non-complaint meal and/or rest period during the same Success 20 Sharing plan period, within three years of the filing of the complaint in this action through 21 present.” (TAC ¶ 12(b)(i).) 22 Next, the Reporting Time Pay Subclass is defined as “[a]ll non-exempt Home Depot 23 employees in California who (1) received a flat sum, non-percentage based Success 24 Sharing payment (e.g. $100) for a given Success Sharing payment and (2) received 25 reporting time pay . . . for a shift qualifying for reporting time pay under California law 26 during the same Success Sharing plan period, within three years of the filing of the 27 complaint in this action through present.” (Id. ¶ 12(b)(ii).) 28 /// 1 2. Davey 2 In Davey, the plaintiff similarly asserts she and class members earned non- 3 discretionary incentive pay in the form of “Success Sharing Bonuses” and “Homer 4 Award(s)” which were not factored into the regular rate of pay for purposes of paying rest 5 period premiums. See Davey, Doc. No. 1-3, ¶ 41. The Davey plaintiff also alleges a number 6 of other improper practices, including Defendant’s failure to provide lawful on-duty meal 7 periods. Id. ¶ 34. The Davey First Amended Complaint (“FAC”) alleges causes of action 8 for: (1) failure to provide meal periods, (2) failure to provide rest periods, (3) failure to pay 9 timely wages, (4) failure to provide accurate itemized wage statements, and (5) violation 10 of Business & Professions Code § 17200, et seq. See generally id. 11 The Davey FAC defines the class as “[a]ll current and former California non-exempt 12 employees of Defendants who received non-discretionary remuneration, including but not 13 limited to ‘Success Sharing Bonus’ and ‘Homer Award(s)’ and was paid any meal and rest 14 period premium payments in the same period that the non-discretionary remuneration was 15 earned, at any time between May 26, 2016 through the present.” Id. ¶ 10. The Davey 16 plaintiff also seeks to represent five sub-classes, composed of a (1) Meal Period Subclass, 17 (2) Rest Period Subclass, (3) Wage Statement/Regular Rate Subclass, (4) Waiting Time 18 Penalty Subclass, and (5) Unfair Business Practice Subclass. Id. ¶ 11. 19 3. Sandoval 20 The plaintiff in Sandoval alleges Defendant failed to pay all wages owed to separated 21 employees and to provide accurate itemized wage statements, in violation of Labor Codes 22 §§ 201–203 and 226. See Sandoval, Doc. No. 13, ¶ 3. 23 The Sandoval FAC seeks certification of two classes. The Paycard Class is defined 24 as “[a]ll employees of Defendants in the State of California, who during their employment 25 received their normal payroll wages through check or direct deposit, but upon their 26 separation of employment (voluntary or involuntary) at any time from January 31, 2017, 27 through the present, received their terminating wages in the form of a paycard[.]” Id. 28 ¶ 16(a). Next, the Wage Statement Class is defined as “[a]ll current and former California 1 non-exempt employees of Defendants who were paid [overtime] Premium wages at any 2 time from January 31, 2019, through the present and whose respective wage statement did 3 not identify the applicable rate of pay for the OT Premium wage[.]” Id. ¶ 16(b). 4 4. Flores 5 In Flores, the plaintiff argues she was not paid her final wages upon separation of 6 her employment, and that rather, Defendant paid her in the form of a payroll card that 7 required the incurrence of charges and expenses which reduced the wages she was entitled 8 to. See Flores, Doc. No. 1-4, ¶ 14. The Flores plaintiff also alleges a number of other 9 improper practices, including Defendant’s failure to provide accurate wage statements. Id. 10 ¶ 18. The Flores FAC alleges causes of action for: (1) failure to pay overtime, (2) failure 11 to pay minimum wage, (3) failure to pay timely wages upon termination, (4) failure to 12 provide and maintain accurate itemized wage statements, (5) failure to provide meal 13 breaks, (6) failure to provide uninterrupted rest periods, (7) unlawful discount and 14 deductions, in violation of Labor Code §§ 212 & 213, (8) unlawful discount and 15 deductions, in violation of Labor Code §§ 221 & 224, (9) unlawful secret discount, 16 (10) unlawful business practices, and (11) violation of the Private Attorneys General Act 17 of 2004. See generally id. 18 The Flores FAC defines the class as “[a]ll persons who were employed by [Home 19 Depot] as nonexempt employees, in California at any time from four years prior to the date 20 of filing of this action through the date of trial.” Id. ¶ 22. The FAC also seeks to classify 21 27 subclasses. Id. ¶¶ 23–49. 23 Under Federal Rule of Evidence 201, the court may take judicial notice of a fact that 24 is “not subject to reasonable dispute because it: (1) is generally known within the territorial 25 jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy 26 cannot reasonably be questioned.” Fed. R. Evid. 201(b). 27 Utne asks the Court to take judicial notice of fifteen exhibits in support of his motion 28 to intervene: (1) the court’s docket in Utne v. Home Depot, No. 3:16-CV-01854-RS; (2) the 1 court’s docket in White v. Home Depot U.S.A. Inc., Case No. 3:22-cv-00276-AJB-AGS; 2 (3) the original complaint in the Utne action; (4) the class certification order in the Utne 3 action; (5) the first amended complaint in the Utne action; (6) the third amended complaint 4 in the Utne action; (7) the Complaint filed in the instant action; (8) the Notice of Related 5 Cases filed by Defendant in the instant action; (9) the complaint filed in the White action; 6 (10) the October 6, 2021 Motion to Consolidate, filed by Defendant, in the instant action; 7 (11) the Court’s November 3, 2021 Consolidation Order in the instant action; (12) the 8 motion to dismiss filed by the defendant in the White action; (13) the Stipulation to Transfer 9 and Vacate Hearing Date filed in the White action; (14) the Joint Motion to Continue Class 10 Certification Motion Deadline filed in the instant action; and (15) the court’s March 28, 11 2022 Order filed in the Utne action. (Doc. No. 111-3 at 4–5.) 12 Additionally, in support of his Motion to Intervene, Utne supplementally requests 13 judicial notice of seven exhibits: (1) the Administrative Motion to Consider Whether Cases 14 Should Be Related, filed by the plaintiff, in Henry v. Home Depot et al., Case No. 3:14-cv- 15 04858; (2) the defendant’s Opposition to Plaintiff’s Administrative Motion to Consider 16 Whether Cases Should Be Related in the Henry action; (3) the court’s April 25, 2016 Order 17 Denying Motion to Relate Cases in the Henry action; (4) the court’s April 25, 2016 Order 18 Denying Motion to Relate Cases in the Utne action; (5) the September 8, 2016 Joint Case 19 Management Statement filed by the parties in the Utne action; (6) the PAGA complaint 20 filed in the White action; and (7) the February 2, 2022 Stipulation to Transfer and Vacate 21 Hearing Date, filed by the defendant, in the White action. (Doc. No. 126-1 at 5.) 22 Neither Plaintiffs nor Defendant oppose judicial notice of these documents. (See 23 generally Doc. Nos. 123–25.) However, the Court need not take judicial notice of its own 24 docket or documents filed on the docket in this case. Henricks v. Cal. Pub. Utils. Comm’n, 25 No. 17CV2177-MMA (MDD), 2018 WL 2287346, at *8 (S.D. Cal. May 18, 2018) (citing 26 Asdar Grp. v. Pillsbury, Madison, & Sutro, 99 F.3d 289, 290 n.1 (9th Cir. 1996)) (finding 27 moot Plaintiff’s request for the Court to take judicial notice of pleadings filed on the docket 28 in this case). Because Exhibits G, H, J, K, and N are publicly filed on the docket, the Court 1 DENIES AS MOOT Utne’s request for judicial notice as to these exhibits. (Doc. No. 111- 2 3.) 3 As to the remaining exhibits, a “court may take judicial notice of court records in 4 another case.” United States v. Howard, 381 F.3d 873, 876 n.1 (9th Cir. 2004). However, 5 “[w]hile the authenticity and existence of a particular order, motion, pleading or judicial 6 proceeding, which is a matter of public record, is judicially noticeable, veracity and validity 7 of its contents . . . are not.” United States v. S. Cal. Edison Co., 300 F. Supp. 2d 964, 974 8 (E.D. Cal. 2004). Accordingly, the Court GRANTS Utne’s request for judicial notice for 9 the stated purpose that these documents exist. 11 Utne seeks to intervene in this matter as a named class representative pursuant to 12 Rule 24(a) or, alternatively, Rule 24(b). (See Doc. No. 111.) Utne asserts that intervention 13 under either provision is appropriate, as many class members of the Consolidated Cases 14 overlap with members of the certified class in the Utne Action, and the Consolidated Cases 15 pending before this Court pose an “imminent and material threat” to the damages, penalties, 16 and interest at issue in Utne v. Home Depot U.S.A., Inc., Case No. 3:16-cv-01854. 17 A. Rule 24(a) Intervention as of Right 18 Federal Rule of Civil Procedure 24(a)(2) requires that a court permit anyone to 19 intervene who “claims an interest relating to the property or transaction that is the subject 20 of the action, and is so situated that disposing of the action may as a practical matter impair 21 or impede the movant’s ability to protect its interest, unless existing parties adequately 22 represent that interest.” There are four requirements for intervention as of right: 23 (1) timeliness; (2) an interest relating to the property or transaction that is the subject of the 24 action; (3) disposition of the action may impair or impede the movant’s ability to protect 25 the interest; and (4) the movant’s interest is not adequately represented by existing parties. 26 Nw. Forest Res. Council v. Glickman, 82 F.3d 825, 836 (9th Cir. 1996), as amended on 27 denial of reh’g (May 30, 1996). The party seeking to intervene bears the burden of showing 28 that all of the requirements for intervention are satisfied. United States v. Alisal Water 1 Corp., 370 F.3d 915, 919 (9th Cir. 2004). Failure to satisfy even one of these elements 2 prohibits the applicant from intervening as of right. League of United Latin Am. Citizens v. 3 Wilson, 131 F.3d 1297, 1302 (9th Cir. 1997). In deciding a motion to intervene, courts need 4 not take as true allegations that are a sham or frivolous. Sw. Ctr. for Biological Diversity v. 5 Berg, 268 F.3d 810, 820 (9th Cir. 2001). 6 1. Timeliness 7 First, Utne’s motion for intervention must be timely. Fed. R. Civ. P. 24(a). When 8 assessing timeliness, the Ninth Circuit considers three factors: (1) the stage of the 9 proceedings; (2) any prejudice to existing parties; and (3) the length of, and reason for, any 10 delay. League of United Latin Am. Citizens, 131 F.3d at 1308 (citing Orange Cty. v. Air 11 Cal., 799 F.2d 535, 537 (9th Cir. 1986)). 12 Here, timeliness is not at issue. Although Utne filed his initial motion to intervene 13 roughly two and a half years after Plaintiffs filed their complaint, the Barragan Plaintiffs’ 14 have not yet filed their motion for class certification, discovery is ongoing with no set cut- 15 off date, and a scheduling order establishing a trial date has not been entered. (Doc. Nos. 16 106, 108); see Munoz v. PHH Corp., No. 1:08-cv-0759-AWI-BAM, 2013 WL 3935054, at 17 *7 (E.D. Cal. July 29, 2013). Utne’s motion is timely. 18 2. Significantly Protectable Interest 19 “Whether an applicant for intervention demonstrates sufficient interest in an action 20 is a practical, threshold inquiry.” Greene v. United States, 996 F.2d 973, 976 (9th Cir. 21 1993). A prospective intervenor must demonstrate a significantly protectable interest in the 22 lawsuit to merit intervention. Nw. Forest Res. Council, 82 F.3d at 837. “To demonstrate 23 this interest, a prospective intervenor must establish that (1) the interest asserted is 24 protectable under some law, and (2) there is a relationship between the legally protected 25 interest and the claims at issue.” Id. (internal quotation marks and alteration omitted). The 26 interest must be “direct, non-contingent, substantial and legally protectable . . . .” Dilks v. 27 Aloha Airlines, 642 F.2d 1155, 1157 (9th Cir. 1981). Moreover, “[a]n applicant generally 28 satisfies the ‘relationship’ requirement only if the resolution of the plaintiff’s claims 1 actually will affect the applicant.” Donnelly v. Glickman, 159 F.3d 405, 410 (9th Cir. 1998) 2 (citing Montana v. U.S. Env’t Prot. Agency, 137 F.3d 1135, 1141–42 (9th Cir. 1998)). 3 Utne asserts he has a significant, protectable interest because the Consolidated Cases 4 assert a number of the same California Labor Code violations and relief sought in the Utne 5 action. (Doc. No. 111 at 25.) Utne contends he represents a certified class of approximately 6 140,000 current and former employees of Home Depot in California, from March 8, 2012 7 to the present, with respect to claims valued at nearly $2 billion. (Doc. No. 111 at 25.) He 8 further argues he has an interest in the instant action because the vast majority of class 9 members in the Consolidated Cases are also members of the certified class in Utne, and 10 that “disposition of [these actions] will impair and impede Mr. Utne’s ability to protect his 11 interests and the interests of the class he represents in nearly $2,000,000,000 in damages, 12 penalties and interest.” (Id. at 25–26.) 13 Plaintiffs oppose Utne’s motion on the basis that intervention here is premature. 14 (Doc. Nos. 123 at 2–3; 125 at 4–5.) Specifically, Plaintiffs assert there is no pending 15 settlement or approval motions at issue in the Consolidated Cases, and thus Utne has 16 neither property nor money to which he has an interest. (Doc. Nos. 123 at 3; 125 at 5.) 17 Defendant also opposes Utne’s motion to intervene, asserting none of the substantive 18 claims at issue in the Consolidated Cases overlap with the substantive issues in Utne. (Doc. 19 No. 124 at 16–17.) 20 Here, in light of the fact that the Third Amended Complaint in Utne and the various 21 complaints in the Consolidated Cases bring similar causes of action, involve similar classes 22 of people, and seek similar relief, the Court finds Utne has sufficient legal interest in this 23 action. (See Doc. No. 111-3 at 121–39.) See Doe v. Cin-Lan, Inc., No. 08-cv-12719, 2011 24 WL 37970, at *2 (E.D. Mich. Jan. 5, 2011) (finding “no dispute” that proposed interveners, 25 certified classes in a similar action in another state, possessed interest in settlement of 26 nationwide claims). 27 3. Impairment of Putative Intervenor’s Interest 28 Plaintiffs contend that even if Utne has a protectable interest in the action, and the 1 Parties eventually reach a settlement or class action settlement, this would not in itself grant 2 Utne the right to intervene because class members may always object to the settlement. 3 (Doc. Nos. 123 at 3; 125 at 5.) Defendant also joins Plaintiffs in arguing Utne may object 4 to any settlement during the hearings on motions for preliminary or final approval, or may 5 opt out of the class and pursue his claims separately. (Doc. No. 124 at 20.) 6 While Utne has a protectable interest in this case, his interests will not be impaired 7 absent intervention. As other courts have explained, “courts have frequently denied 8 intervention in the class action settlement context, citing concerns about prejudice, as well 9 as putative intervenors’ ability to protect their interests by less disruptive means.” Zepeda 10 v. PayPal, Inc., Case No. 10-cv-02500-SBA (JCS), 2014 WL 1653246, at *4 (N.D. Cal. 11 Apr. 23, 2014). For example, putative intervenors may “opt[] out of the settlement class or 12 participat[e] in the fairness hearing process.” Id.; see also In re Volkswagen “Clean Diesel” 13 Mktg., Sales Practices, and Prods. Liability Litig., MDL No. 2672 CRB (JSC), 2016 WL 14 4376623, at *4 (N.D. Cal. Aug. 17, 2016) (denying putative intervenor’s motion because 15 the putative intervenor could “opt out of the Settlement and litigate his claims 16 independently, or he may instead object to it”), aff’d, 894 F.3d 1030 (9th Cir. 2018); 17 Hofstetter v. Chase Home Fin., LLC, No. C 10-01313 WHA, 2011 WL 5415073, at 2–3 18 (N.D. Cal. Nov. 8, 2011) (holding the opportunity to opt out of a settlement adequately 19 safeguarded a putative intervenor’s interests). 20 The Ninth Circuit recognizes in the class action settlement context, a putative 21 intervenor’s concerns may “largely be addressed through the normal objection process.” 22 Allen v. Bedolla, 787 F.3d 1218, 1222 (9th Cir. 2015); see also Devlin v. Scardelletti, 536 23 U.S. 1, 14 (2002) (explaining the “class action procedure allows nonnamed class members 24 to object to a settlement at the fairness hearing without first intervening”). 25 The circumstances here are no different. Although the parties for the Consolidated 26 Cases met for mediation on May 10, 2022, the parties did not reach a class action 27 settlement. However, Utne may later raise any concerns as an objector if the parties reach 28 settlement. Before the Court will approve the settlement, the Court must conclude that the 1 settlement is “fair, reasonable, and adequate” and that Plaintiffs and class counsel “have 2 adequately represented the class.” Fed. R. Civ. P. 23(e)(2). Thus, because Utne cannot 3 show that his interests will be impaired absent intervention, he may not intervene under 4 Rule 24(a). Perry v. Proposition 8 Off. Proponents, 587 F.3d 947, 950 (9th Cir. 2009) 5 (“Failure to satisfy any one of the requirements is fatal to the application, and we need not 6 reach the remaining elements if one of the elements is not satisfied.”). 7 4. Adequacy of Representation 8 In determining whether an applicant’s interest would be represented adequately by 9 a present party, a court considers: “(1) whether the interest of a present party is such that it 10 will undoubtedly make all the intervenor’s arguments; (2) whether the present party is 11 capable and willing to make such arguments; and (3) whether the would-be intervenor 12 would offer any necessary elements to the proceedings that other parties would neglect.” 13 Nw. Forest Res. Council, 82 F.3d at 838 (citing California v. Tahoe Reg’l Plan. Agency, 14 792 F.2d 775, 778 (9th Cir. 1986)). 15 Here, Utne fails to assert how counsel for Plaintiffs in the Consolidated Cases is 16 inadequate. Rather, Utne contends “he has numerous additional resources, information and 17 leverage available to him . . . .” (Doc. No. 111 at 27.) Utne primarily relies upon the posture 18 in Utne, stating: 19 Utne and his counsel have spent over six years, thousands of attorney hours, and approximately three million dollars . . . litigating their certified class 20 claims against Home Depot. They have overcome motions for summary 21 judgment. They have obtained and analyzed extensive time and pay records from Home Depot. . . . And, their claims pre-date any of the claims raised in 22 the Consolidated Actions or the White Action by at least three years, and 23 therefore include extensive damages that simply are not available in these other actions. 24

25 (Id. at 26–27.) However, this argument does not establish the necessary inadequate 26 representation element required by Rule 24(a). 27 Accordingly, Utne’s motion to intervene under Rule 24(a) is DENIED. 28 /// 1 B. Rule 24(b) Permissive Intervention 2 Rule 24(b)(1)(B) provides: “[o]n timely motion, the court may permit anyone to 3 intervene who . . . has a claim or defense that shares with the main action a common 4 question of law or fact.” Fed. R. Civ. P. 24(b)(1)(B). The court must also consider “whether 5 intervention will unduly delay or prejudice the adjudication of the original parties’ rights.” 6 Fed. R. Civ. P. 24(b)(3). In other words, in the Ninth Circuit, “a court may grant permissive 7 intervention where the applicant for intervention shows (1) independent grounds for 8 jurisdiction; (2) the motion is timely; and (3) the applicant’s claim or defense, and the main 9 action, have a question of law or a question of fact in common.” United States v. City of 10 Los Angeles, 288 F.3d 391, 403 (9th Cir. 2002) (quoting Nw. Forest Res. Council, 82 F.3d 11 at 839). “Even if an applicant satisfies those threshold requirements, the district court has 12 discretion to deny permissive intervention.” S. Cal. Edison Co. v. Lynch, 307 F.3d 794, 803 13 (9th Cir. 2002) (quoting Donnelly, 159 F.3d at 412). 14 Utne alternatively seeks permissive intervention pursuant to Rule 24(b), contending 15 the three prongs for such intervention are clearly met. Plaintiffs and Defendant oppose 16 intervention. (See generally Doc. Nos. 123–125.) In Defendant’s opposition, it contends 17 Utne shares no common questions of law or fact with the Consolidated Cases, and that 18 intervention will only unduly delay the Consolidated Cases and unfairly prejudice the 19 existing parties. (Doc. No. 40 at 20.) To this latter point, the Court agrees. 20 This Court finds permissive intervention is not warranted here because Utne’s 21 interests are already adequately represented through the class action settlement process. In 22 addition, this Court finds that allowing permissive intervention would not significantly add 23 to the full development of the underlying factual issues in this case nor the equitable 24 adjudication of the legal questions involved but, instead, would significantly delay the 25 proceedings and prejudice the rights of the original parties here. Therefore, this Court 26 declines to allow permissive intervention pursuant to Rule 24(b). 27 C. Motion to Transfer and/or Stay Case Pursuant to First-to-File Rule 28 Federal district courts generally attempt to avoid duplicative litigation and 1 inconsistent judgments. Colo. River Water Conservation Dist. v. United States, 424 U.S. 2 800, 817 (1976). One mechanism to prevent duplicative litigation is the “first-to-file” rule. 3 Pacesetter Sys., Inc. v. Medtronic, Inc., 678 F.2d 93, 95 (9th Cir. 1982). Under the first-to- 4 file rule, where the same issues are presented in separate lawsuits in front of different 5 district courts, the court that acquires jurisdiction first generally tries the lawsuit before the 6 second court. Id. While a strong policy against redundant lawsuits exists, courts do not 7 apply the first-to-file rule mechanically. Id. Instead, they must exercise discretion to 8 determine how best to conserve judicial resources and comprehensively dispose of 9 litigation. Kerotest Mfg. Co. v. C-O-Two Fire Equip. Co., 342 U.S. 180, 183–84 (1952). 10 Courts must consider three factors in deciding whether to apply the first-to-file rule: 11 (1) the chronology of the two actions; (2) the similarity of the parties; and (3) the similarity 12 of the issues. Alltrade, Inc. v. Uniweld Prods., Inc., 946 F.2d 623, 625–26 (9th Cir. 1991). 13 Exceptions to the first-to-file rule can be made in cases of bad faith, anticipatory suit, forum 14 shopping, or where the balance of convenience favors the later-filed action. Id. at 627–28. 15 Ultimately, however, “[t]he most basic aspect of the first-to-file rule is that it is 16 discretionary; an ample degree of discretion, appropriate for disciplined and experienced 17 judges, must be left to the lower courts.” Id. at 627 (quoting Kerotest, 342 U.S. at 183–84) 18 (internal quotation marks omitted). 19 To begin, it is undisputed that the Utne action was filed first. Thus, the Court focuses 20 its analysis on whether there is substantial similarity of the parties and issues between the 21 two actions to warrant application of the rule. 22 1. Similarity of Parties 23 Courts in the Ninth Circuit have adopted a flexible approach in evaluating the 24 similarity of the parties. “[E]xact identity is not required to satisfy the first-to-file rule. The 25 rule is satisfied if some of the parties in one matter are also in the other matter, regardless 26 of whether there are additional unmatched parties in one or both matters.” Intersearch 27 Worldwide, Ltd. v. Intersearch Grp., Inc., 544 F. Supp. 2d 949, 959 n.6 (N.D. Cal. 2008). 28 “In a class action, the similarity of the classes, and not the class representatives, is 1 assessed.” Manier v. L’Oreal USA, Inc, Case No. 2:16-CV-06886-ODW-KS, 2017 WL 2 59066, at *3 (C.D. Cal. Jan. 4, 2017) (citation omitted). 3 Defendant argues the parties are not “substantially similar” because the classes 4 certified in Utne include “[a]ll individuals employed by Home Depot in hourly-paid or 5 non-exempt positions in Home Depot stores in California at any time since March 8, 2012, 6 and who worked at least one shift ending after the time that the Home Depot store was 7 scheduled to close to the public for the evening” and “[a]ll individuals employed by Home 8 Depot in hourly-paid or non-exempt positions in California at any time since March 8, 9 2012” related to pre-shift off-the-clock claims. (Doc. No. 124 at 25.) In contrast, the class 10 certified in Barragan only includes employees who both received a minimum Success 11 Sharing bonus and worked overtime during the same period. (Id. (citing Doc. No. 106).) 12 The Consolidated Cases also seek to certify a class of employees who suffered alleged meal 13 and rest break violations or received pay cards at termination, which are groups of 14 employees not at issue in Utne. (Id.) 15 Here, Home Depot is the defendant in both actions. (Compare TAC ¶ 10, with Utne 16 TAC ¶ 6). Moreover, the proposed classes for the actions are substantially similar in that 17 both classes seek to represent at least some of the same individuals. Accordingly, the Court 18 finds the parties are substantially similar under the first-to-file rule. See Manier, 2017 WL 19 59066, at *3 (“Where the proposed classes in both actions overlap, courts have held that 20 the parties are substantially similar.” (citation omitted)); see also Mehr v. Capital One Bank 21 USA N.A., No. CV 18-1576 JVS (ADSx), 2019 WL 2428768, at *3 (C.D. Cal. Jan. 4, 2019) 22 (“[T]he similar parties requirement is satisfied even if the second-filed suit is narrower than 23 the first-filed suit.” (citation omitted)). 24 2. Similarity of the Issues 25 Like the similarity of parties prong, the issues in the two actions need not be identical 26 for the first-to-file rule to apply. Inherent.com v. Martindale-Hubble, 420 F. Supp. 2d 1093, 27 1097 (N.D. Cal. 2006). “The sameness inquiry focuses on the facts and issues raised in the 28 actions, not on the specific claims pled.” Mehr, 2019 WL 2428768, at *4 (alteration and 1 citation omitted). When analyzing whether issues are substantially similar, a court 2 considers if the common facts, taken together, would lead to the same central question 3 between the cases. See Adoma v. Univ. of Phoenix, Inc., 711 F. Supp. 2d 1142, 1148 (E.D. 4 Cal. 2010); see also Ward v. Follett Corp., 158 F.R.D. 645, 648–49 (N.D. Cal. 1994) 5 (applying the first-to-file rule in a case where there is a common central question). Even if 6 a plaintiff presents alternative theories compared to another pending action, it does not 7 necessarily prevent the application of the first-to-file rule because common facts may give 8 rise to a central issue between the cases. Adoma, 711 F. Supp. 2d at 1149. 9 Defendant argues there is no similarity of issues under the rule because only two 10 claims are at issue in Barragan—failure to correctly calculate overtime and failure to pay 11 all wages due during each pay period—neither of which are at issue in Utne. (Doc. No. 40 12 at 24.) Utne asserts the Consolidated Cases and Utne involve the same issues, including 13 claims that Home Depot failed to pay minimum and overtime wages, failed to provide meal 14 and rest periods, failed to timely pay wages, and failed to provide accurate wage statements 15 to non-exempt employees in California. (Doc. No. 111 at 32.) However, as noted by 16 Defendant, only the two claims mentioned above remain. Moreover, although many of the 17 Consolidated Cases involve claims alleging failure to pay overtime wages and to provide 18 accurate itemized wage statements, the first-to-file rule does not apply here. The factual 19 allegations of the TAC in the instant case are premised on an alleged miscalculation of the 20 “regular rate of pay,” due to Defendant’s Success Sharing bonus program, while the 21 complaint in Utne alleges Defendant maintained a policy or practice of requiring the 22 plaintiffs to wait off-the-clock to be released from Defendant’s stores following the end of 23 their shift. Additionally, Sandoval and Davey are premised on Defendant’s alleged 24 miscalculation of the “regular rate of pay,” its alleged use of a paycard to pay final wages 25 in Sandoval and Flores, and its alleged failure to provide meal and rest breaks in Flores 26 and Davey. 27 Accordingly, the Court DENIES Utne’s motion to transfer and/or stay the 28 Consolidated Cases based on the first-to-file rule. 1 |}IV. CONCLUSION 2 For the foregoing reasons, Utne’s Motion to Intervene is DENIED without 3 prejudice, as Utne has not demonstrated he is entitled to intervene of right or that 4 || permissive intervention is warranted at this time. Utne’s Motion to Transfer and/or Stay 5 ||the Consolidated Actions is also DENIED. Utne’s Motion for Appointment of Interim 6 Class Counsel is further DENIED AS MOOT. 7 9 || Dated: July 6, 2022 © 10 Hon, Anthony J.Battaglia 11 United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16