1 HONORABLE BENJAMIN H. SETTLE HONORABLE MICHELLE L. PETERSON 2
8 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON 9 AT TACOMA 10
11 ZANE J. KIRBY, Case No. 3:22-cv-05168-BHS-MLP 12
13 JOINT STIPULATION TO MODIFY Plaintiff, ORDER SETTING PRETRIAL 14 SCHEDULE v. 15 McMENAMINS, INC., et al., 16 Defendant. 17
18 19 20 21 22 23 24 25 26 27 1 RECITALS 2 WHEREAS, on or about February 9, 2022, Plaintiff ZANE KIRBY (“Plaintiff”) filed his 3 Class Action Complaint for Unpaid and Wrongfully Withheld Wages (the “Complaint”) in this action 4 in the Superior Court of the State of Washington in and for the County of Lewis [Dkt. #1-1]; 5 WHEREAS, on March 16, 2022, Defendant McMENAMINS, INC. (“Defendant”) removed 6 Plaintiff’s above-described state court action to this Court [Dkt. No. 1]; 7 WHEREAS, in his Complaint, Plaintiff alleges causes of action against Defendant, an 8 Oregon corporation that is engaged in the food and restaurant industry, for, inter alia, failure to 9 compensate for missed meal and rest periods pursuant to RCW 49.12 and WAC 296-126-092, which 10 allegations Defendant denies; 11 WHEREAS, on May 19, 2022, this Court issued its Order Setting Pretrial Schedule, which 12 included, inter alia, an April 10, 2023 “[d]eadline for Plaintiff to file Motion for Class Certification 13 and Report of Class Certification Expert”, with a note that “[t]his deadline can be extended for good 14 cause pursuant to LCR 23(i).” [Dkt. No. 12]. The Court’s Order Setting Pretrial Schedule also 15 includes a May 8, 2023 deadline for Defendant to file its Opposition to Plaintiff’s Motion for Class 16 Certification, and a July 15, 2023 deadline for discovery to be completed by. Id. 17 WHEREAS, since the Court’s issuance of the Order Setting Pretrial Schedule, the parties 18 have worked diligently towards completing discovery and preparing for class certification briefing; 19 WHEREAS, on May 26, 2022, Plaintiff propounded a first set of written discovery requests 20 consisting of Interrogatories and Requests for Production of Documents to Defendant, and Plaintiff 21 also simultaneously provided Defendant with a Notice of Deposition of Person Most Knowledgeable 22 at McMenamins, Inc., which included eleven deposition subjects for Defendant’s Rule 30(b)(6) 23 designee(s); 24 WHEREAS, on June 30, 2022, Defendant served Plaintiff with its Objections, Answers, and 25 Responses to Plaintiff’s first set of written discovery requests. Defendant also produced 149-pages of 26 responsive documents to Plaintiff on July 1, 2022; 27 WHEREAS, on July 19, 2022, Plaintiff’s counsel sent Defendant’s counsel a Meet & Confer 1 letter alleging deficiencies in Defendant’s responses to Plaintiff’s first set of written discovery; 2 WHEREAS, on August 16, 2022, Plaintiff’s counsel and Defendant’s counsel engaged in a 3 thorough meet and confer conversation via telephone regarding the deficiencies in Defendant’s 4 responses to Plaintiff’s first set of written discovery, in an effort to eliminate the need for Plaintiff to 5 file a motion to compel discovery. Through the meet and confer process, the parties worked 6 cooperatively to agree on a modified discovery plan that is manageable, and Defendant agreed to 7 produce to Plaintiff specific discovery documents and class data relevant to Plaintiff’s forthcoming 8 motion for class certification, including, inter alia: a class list (with a random sample of 15% of the 9 class members’ contact information); all applicable compensation policies and meal and rest period 10 policies; a random sample of 15% of the class members’ timecard or time-clock records; and a 11 random sample of 15% of the class members’ wage statements; 12 WHEREAS, during the August 16, 2022 meet and confer conversation, Defendant’s counsel 13 informed Plaintiff’s counsel that Defendant was the victim of a ransomware attack in December 2021 14 which destroyed many of its records, including its historical electronic timecard and payroll records. 15 Specifically, on December 12, 2021, Defendant suffered a ransomware attack and cybercriminals 16 gained access to the company system and installed malicious software. As a result, most electronic 17 documents, including related to Plaintiff, were destroyed. Defendant’s counsel informed Plaintiff’s 18 counsel that while Defendant does maintain physical timecard and payroll records, the process for 19 compiling, analyzing, and producing responsive documents is laborious and time-consuming. 20 Therefore, the Parties are, and have been, working diligently together to identify solutions to produce 21 documents and information responsive to Plaintiff’s discovery requests; 22 WHEREAS, counsel for the parties continued to correspond via email in September 2022 23 regarding the aforementioned outstanding discovery production, including hardcopy and electronic 24 documents. On September 30, 2022, Defendant produced additional responsive documents to 25 Plaintiff and Defendant’s counsel informed Plaintiff’s counsel that they are still reviewing a large 26 volume of hardcopy documents, which they anticipated would be ready for production later in 2022. 27 The parties also agreed upon a random sample method; 1 WHEREAS, on December 15, 2022, Defendant produced timeclock records for Plaintiff, and 2 Plaintiff’s counsel and Defendant’s counsel continued to correspond and meet and confer in January 3 2023 regarding outstanding discovery documents, including the class list and a randomized sample 4 of timecard and wage statement records of the putative class members; 5 WHEREAS, On January 20, 2023, Defendant served Plaintiff with its Objections to 6 Plaintiff’s Notice of Rule 30(b)(6) Deposition of Person Most Knowledgeable at McMenamins, Inc. 7 and requested that the parties meet and confer. Defendant’s counsel also informed Plaintiff’s counsel 8 that Defendant is still working on producing outstanding discovery. On January 26, 2023, Plaintiff’s 9 counsel and Defendant’s counsel engaged in a thorough meet and confer conversation via telephone 10 regarding Plaintiff’s Rule 30(b)(6) topics, as well as the aforementioned outstanding discovery 11 productions, including the class list and a randomized sample of timecard and wage statement records 12 of the putative class members; 13 WHEREAS, On January 30, 2023, Defendant produced additional documents to Plaintiff, 14 including an anonymized class list and a 15% sample class list with putative class members’ names, 15 but with no contact information. On February 2, 2023, Plaintiff’s counsel emailed Defendant’s 16 counsel regarding outstanding discovery productions, including a 15% sample class list with contact 17 information and random samples of the putative class members’ timecard and wage statement 18 records. Plaintiff’s counsel and Defendant’s counsel have continued conferring in February and 19 March 2023 regarding outstanding discovery productions, and regarding jointly requesting that this 20 Court modify the Order Setting Pretrial Schedule, especially due to the difficulties Defendant has had 21 producing physical records as a result of the ransomware attack it was subjected to; 22 WHEREAS, the Parties have discussed the possibility of engaging in settlement discussions, 23 and those conversations are ongoing; 24 WHEREAS, the Parties agree that additional time is needed to complete written discovery 25 and depositions relevant to Plaintiff’s forthcoming motion for class certification, and Defendant’s 26 opposition to the same; 27 WHEREAS, there is good cause to modify the Order Setting Pretrial Schedule to allow the 1 parties to complete written discovery, take depositions, including Defendant’s Rule 30(b)(6) 2 deposition, and for Plaintiff to brief his motion for class certification; 3 WHEREAS, Fed. R. Civ. P.
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1 HONORABLE BENJAMIN H. SETTLE HONORABLE MICHELLE L. PETERSON 2
8 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON 9 AT TACOMA 10
11 ZANE J. KIRBY, Case No. 3:22-cv-05168-BHS-MLP 12
13 JOINT STIPULATION TO MODIFY Plaintiff, ORDER SETTING PRETRIAL 14 SCHEDULE v. 15 McMENAMINS, INC., et al., 16 Defendant. 17
18 19 20 21 22 23 24 25 26 27 1 RECITALS 2 WHEREAS, on or about February 9, 2022, Plaintiff ZANE KIRBY (“Plaintiff”) filed his 3 Class Action Complaint for Unpaid and Wrongfully Withheld Wages (the “Complaint”) in this action 4 in the Superior Court of the State of Washington in and for the County of Lewis [Dkt. #1-1]; 5 WHEREAS, on March 16, 2022, Defendant McMENAMINS, INC. (“Defendant”) removed 6 Plaintiff’s above-described state court action to this Court [Dkt. No. 1]; 7 WHEREAS, in his Complaint, Plaintiff alleges causes of action against Defendant, an 8 Oregon corporation that is engaged in the food and restaurant industry, for, inter alia, failure to 9 compensate for missed meal and rest periods pursuant to RCW 49.12 and WAC 296-126-092, which 10 allegations Defendant denies; 11 WHEREAS, on May 19, 2022, this Court issued its Order Setting Pretrial Schedule, which 12 included, inter alia, an April 10, 2023 “[d]eadline for Plaintiff to file Motion for Class Certification 13 and Report of Class Certification Expert”, with a note that “[t]his deadline can be extended for good 14 cause pursuant to LCR 23(i).” [Dkt. No. 12]. The Court’s Order Setting Pretrial Schedule also 15 includes a May 8, 2023 deadline for Defendant to file its Opposition to Plaintiff’s Motion for Class 16 Certification, and a July 15, 2023 deadline for discovery to be completed by. Id. 17 WHEREAS, since the Court’s issuance of the Order Setting Pretrial Schedule, the parties 18 have worked diligently towards completing discovery and preparing for class certification briefing; 19 WHEREAS, on May 26, 2022, Plaintiff propounded a first set of written discovery requests 20 consisting of Interrogatories and Requests for Production of Documents to Defendant, and Plaintiff 21 also simultaneously provided Defendant with a Notice of Deposition of Person Most Knowledgeable 22 at McMenamins, Inc., which included eleven deposition subjects for Defendant’s Rule 30(b)(6) 23 designee(s); 24 WHEREAS, on June 30, 2022, Defendant served Plaintiff with its Objections, Answers, and 25 Responses to Plaintiff’s first set of written discovery requests. Defendant also produced 149-pages of 26 responsive documents to Plaintiff on July 1, 2022; 27 WHEREAS, on July 19, 2022, Plaintiff’s counsel sent Defendant’s counsel a Meet & Confer 1 letter alleging deficiencies in Defendant’s responses to Plaintiff’s first set of written discovery; 2 WHEREAS, on August 16, 2022, Plaintiff’s counsel and Defendant’s counsel engaged in a 3 thorough meet and confer conversation via telephone regarding the deficiencies in Defendant’s 4 responses to Plaintiff’s first set of written discovery, in an effort to eliminate the need for Plaintiff to 5 file a motion to compel discovery. Through the meet and confer process, the parties worked 6 cooperatively to agree on a modified discovery plan that is manageable, and Defendant agreed to 7 produce to Plaintiff specific discovery documents and class data relevant to Plaintiff’s forthcoming 8 motion for class certification, including, inter alia: a class list (with a random sample of 15% of the 9 class members’ contact information); all applicable compensation policies and meal and rest period 10 policies; a random sample of 15% of the class members’ timecard or time-clock records; and a 11 random sample of 15% of the class members’ wage statements; 12 WHEREAS, during the August 16, 2022 meet and confer conversation, Defendant’s counsel 13 informed Plaintiff’s counsel that Defendant was the victim of a ransomware attack in December 2021 14 which destroyed many of its records, including its historical electronic timecard and payroll records. 15 Specifically, on December 12, 2021, Defendant suffered a ransomware attack and cybercriminals 16 gained access to the company system and installed malicious software. As a result, most electronic 17 documents, including related to Plaintiff, were destroyed. Defendant’s counsel informed Plaintiff’s 18 counsel that while Defendant does maintain physical timecard and payroll records, the process for 19 compiling, analyzing, and producing responsive documents is laborious and time-consuming. 20 Therefore, the Parties are, and have been, working diligently together to identify solutions to produce 21 documents and information responsive to Plaintiff’s discovery requests; 22 WHEREAS, counsel for the parties continued to correspond via email in September 2022 23 regarding the aforementioned outstanding discovery production, including hardcopy and electronic 24 documents. On September 30, 2022, Defendant produced additional responsive documents to 25 Plaintiff and Defendant’s counsel informed Plaintiff’s counsel that they are still reviewing a large 26 volume of hardcopy documents, which they anticipated would be ready for production later in 2022. 27 The parties also agreed upon a random sample method; 1 WHEREAS, on December 15, 2022, Defendant produced timeclock records for Plaintiff, and 2 Plaintiff’s counsel and Defendant’s counsel continued to correspond and meet and confer in January 3 2023 regarding outstanding discovery documents, including the class list and a randomized sample 4 of timecard and wage statement records of the putative class members; 5 WHEREAS, On January 20, 2023, Defendant served Plaintiff with its Objections to 6 Plaintiff’s Notice of Rule 30(b)(6) Deposition of Person Most Knowledgeable at McMenamins, Inc. 7 and requested that the parties meet and confer. Defendant’s counsel also informed Plaintiff’s counsel 8 that Defendant is still working on producing outstanding discovery. On January 26, 2023, Plaintiff’s 9 counsel and Defendant’s counsel engaged in a thorough meet and confer conversation via telephone 10 regarding Plaintiff’s Rule 30(b)(6) topics, as well as the aforementioned outstanding discovery 11 productions, including the class list and a randomized sample of timecard and wage statement records 12 of the putative class members; 13 WHEREAS, On January 30, 2023, Defendant produced additional documents to Plaintiff, 14 including an anonymized class list and a 15% sample class list with putative class members’ names, 15 but with no contact information. On February 2, 2023, Plaintiff’s counsel emailed Defendant’s 16 counsel regarding outstanding discovery productions, including a 15% sample class list with contact 17 information and random samples of the putative class members’ timecard and wage statement 18 records. Plaintiff’s counsel and Defendant’s counsel have continued conferring in February and 19 March 2023 regarding outstanding discovery productions, and regarding jointly requesting that this 20 Court modify the Order Setting Pretrial Schedule, especially due to the difficulties Defendant has had 21 producing physical records as a result of the ransomware attack it was subjected to; 22 WHEREAS, the Parties have discussed the possibility of engaging in settlement discussions, 23 and those conversations are ongoing; 24 WHEREAS, the Parties agree that additional time is needed to complete written discovery 25 and depositions relevant to Plaintiff’s forthcoming motion for class certification, and Defendant’s 26 opposition to the same; 27 WHEREAS, there is good cause to modify the Order Setting Pretrial Schedule to allow the 1 parties to complete written discovery, take depositions, including Defendant’s Rule 30(b)(6) 2 deposition, and for Plaintiff to brief his motion for class certification; 3 WHEREAS, Fed. R. Civ. P. 16(b)(4) and LCR 16(b)(6) authorize a court to modify a case 4 schedule order “for good cause and with the judge’s consent.” See also Order Setting Pretrial 5 Schedule, Dkt. No. 12, which provides that Plaintiff’s deadline to file his motion for class certification 6 “can be extended for good cause pursuant to LCR 23(i).” “Good cause considers the diligence of the 7 parties seeking the modification; a district court may modify the pretrial schedule ‘if it cannot 8 reasonably be met with the diligence of the party seeking the extension.’” Advanced Hair Restoration, 9 LLC v. Hair Restoration Ctrs., LLC, 2017 U.S. Dist. LEXIS 101180, at *2 (W.D. Wash. June 29, 10 2018) (citing Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992)). “Although 11 the existence or degree of prejudice to the party opposing the modification might supply additional 12 reasons to deny a motion, the focus of the inquiry is upon the moving party’s reasons for seeking 13 modification.” Fox v. State Farm Ins. Co., 2016 U.S. Dist. LEXIS 9056, at *4 (W.D. Wash. Jan. 26, 14 2016). 15 WHEREAS, the parties have acted with diligence in trying to adhere to the current Order 16 Setting Pretrial Schedule deadlines, including through several months of discovery-related meet and 17 confer efforts, but are jointly requesting a 120-day extension to the forthcoming deadlines in the 18 Order Setting Pretrial Schedule so that: (a) Defendant can produce to Plaintiff remaining outstanding 19 discovery documents and class data; (b) Plaintiff can take Defendant’s Rule 30(b)(6) deposition; and 20 (c) Defendant can depose Plaintiff; and (d) Plaintiff can brief his motion for class certification. The 21 parties agree the current Order Setting Pretrial Schedule is no longer suitable due to unique 22 circumstances out of the Parties’ control, and specifically due to the difficulties Defendant has had 23 producing physical records as a result of the ransomware attack it was subjected to, but that a modified 24 case schedule that provides a 120-day extension to the forthcoming deadlines in the Order Setting 25 Pretrial Schedule would allow the parties to complete discovery relevant to Plaintiff’s forthcoming 26 motion for class certification, and may also assist the Parties in resolving the case. Accordingly, the 27 Parties agree that modifying the Order Setting Pretrial Schedule and its forthcoming deadlines as 1 requested herein would be prudent and efficient for both the Court and the parties; 2 WHEREAS, neither party will be prejudiced by the requested modification of the Order 3 Setting Pretrial Schedule and related deadlines; and 4 WHEREAS, this is the first time the parties have asked the Court to modify the Order Setting 5 Pretrial Schedule. 6 JOINT STIPULATION 7 NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED, by and between 8 Plaintiff, on the one hand, and Defendant, on the other hand, by and through their respective 9 undersigned counsel, and subject to the Court’s approval, that the deadlines in the Order Setting 10 Pretrial Schedule set forth by the Court (Dkt. No. 12) shall be modified as follows, or set on such 11 other dates as the Court determines: 12 13 DATE EVENT 14 Deadline for Plaintiff to file Motion for Class 15 Certification and Report of Class Certification Expert. August 8, 2023 (This deadline can be extended for good cause pursuant 16 to LCR 23(i).) Deadline for Defendant to file Opposition to Plaintiff’s 17 Motion for Class Certification and Report of Class September 5, 2023 Certification Expert 18 Deadline for Plaintiff to Reply re: Motion for Class 19 Certification September 19, 2023 20 Reports of expert witnesses under FRCP 26(a)(2) due October 9, 2023 21 All motions related to discovery must be filed by this 22 date and noted for consideration no later than the third October 9, 2023 Friday thereafter (see LCR 7(d)) 23 Rebuttal expert disclosures under FRCP 26(a)(2) due November 13, 2023 24 25 Discovery to be completed by November 13, 2023 26 All dispositive motions and motions to exclude expert testimony for failure to satisfy Daubert must be filed December 11, 2023 27 pursuant to LCR 7(d) 1 2 3 4 5 DATED: March 28, 2023 Respectfully submitted, 6 /s/ Brian Denlinger /s/ Christopher T. Wall Craig J. Ackermann, WSBA #53330 Christopher T. Wall, WSBA #45873 7 Brian Denlinger, WSBA #53177 Jacqueline Middleton, WSBA #52636 ACKERMANN & TILAJEF, P.C. STOEL RIVES LLP 8 2602 North Proctor Street, #205 600 University Street, Suite 3600 Tacoma, WA 98406 Seattle, WA 98101 9 Phone: (310) 277-0614 Phone: (206) 624-0900 Fax: (310) 277-0635 Email: Christopher.wall@stoel.com 10 Email: cja@ackermanntilajef.com Jacqueline.middleton@stoel.com bd@ackermanntilajef.com 11 Karen L. O’Connor, WSBA #27012 Tatiana Hernandez, WSBA #54446 STOEL RIVES LLP 12 Law Office of Tatiana Hernandez, P.C. 760 SW 9th Ave., Suite 3000 315 S Beverly Dr., Suite 504 Portland, OR 97205 13 Beverly Hills, CA 90212 Karen.oconnor@stoel.com Tel: (213) 909-4248 14 Email: tatiana@thlawpc.com Attorneys for Defendant
15 Attorneys for Plaintiff 16 17 18
27 1 [PROPOSED] ORDER 2 This matter came before the Court on the Parties’ Joint Stipulation to Modify Order Setting 3 Pretrial Schedule (the “Joint Stipulation”). The Court, having reviewed the Joint Stipulation, and 4 good cause appearing for the relief sought therein, hereby orders that the deadlines in the Order 5 Setting Pretrial Schedule set forth by the Court (Dkt. No. 12) shall be modified as follows: 6 7 DATE EVENT 8 Deadline for Plaintiff to file Motion for Class 9 Certification and Report of Class Certification Expert. August 8, 2023 (This deadline can be extended for good cause pursuant 10 to LCR 23(i).) Deadline for Defendant to file Opposition to Plaintiff’s 11 Motion for Class Certification and Report of Class September 5, 2023 Certification Expert 12 Deadline for Plaintiff to Reply re: Motion for Class 13 Certification September 19, 2023 14 Reports of expert witnesses under FRCP 26(a)(2) due October 9, 2023 15 All motions related to discovery must be filed by this 16 date and noted for consideration no later than the third October 9, 2023 Friday thereafter (see LCR 7(d)) 17 Rebuttal expert disclosures under FRCP 26(a)(2) due November 13, 2023 18 19 Discovery to be completed by November 13, 2023 20 All dispositive motions and motions to exclude expert testimony for failure to satisfy Daubert must be filed December 11, 2023 21 pursuant to LCR 7(d) 22 23 IT IS SO ORDERED. 24 DATED this 29th day of March, 2023. 25 A 26 MICHELLE L. PETERSON 27 United States Magistrate Judge