Leonard v. FedEx Freight, Inc.

Opinion

KEITH A. JACOBY, Bar No. 150233 kjacoby @littler.com SHAHRAM SAMIE, Bar No. 268025 ssamie @littler.com Littler Mendelson, P.C. 2049 Century Park East, 5th Floor Los Angeles, CA 90067.3107 Telephone: (310) 553-0308 Fax No.: (310) 553-5583 SOPHIA BEHNIA, Bar No. 289318 sbehnia @littler.com LITTLER MENDELSON, P.C. 333 Bush Street, 34th Floor San Francisco, CA 94104 Telephone: (415) 433-1940 Fax No.: (415) 399-8490 Attorneys for Defendant FEDEX FREIGHT, INC. ) [ADDITIONAL COUNSEL ON NEXT PAGE] SEAN LEONARD, MEL MENDIETA, on Case No. 2:19-CV-00042-MCE-KJN behalf of themselves, and all others similarly situated, (San Joaquin County Superior Court Case No. STK-CV-UOE-2018-0015211) Plaintiffs, REQUEST FOR ENTRY OF JUDGMENT v. ON FIFTH AND SIXTH CAUSES OF ACTION AND REQUEST FOR FEDEX FREIGHT, INC. and Does 1 DISMISSAL OF FIRST, SECOND, THIRD through 50, inclusive, AND FOURTH CAUSES OF ACTION [F.R.C.P. 58] Defendants. Dept: Courtroom 7 Complaint Filed: December 5, 2018 FAC Filed: October 10, 2019 REQUEST FOR ENTRY OF Case No. 2:19-CV-00042-MCE-KJIN CA JUDGMENT

SANDRA C. ISOM, Bar No. 157374 scisom @fedex.com 8285 Tournament Dr., 2" FI. Memphis, TN 38125 Telephone: (901) 434-8526 Fax No.: (901) 468-1726 Attorneys for Defendant FEDEX FREIGHT, INC. WORKMAN LAW FIRM, PC Robin G. Workman (Bar #145810) robin@workmanlawpc.com 2325 3 Street, Suite 329 San Francisco, CA 94107 Telephone: (415) 782-3660 Facsimile: (415) 788-1028 Attorneys for Plaintiffs, Sean Leonard and Mel Mendieta on behalf of themselves, ) and all other similarly situated REQUEST FOR ENTRY OF Case No. 2:19-CV-00042-MCE-KJN CA JUDGMENT

Plaintiffs Sean Leonard and Mel Mendieta (“Plaintiffs”) and Defendant FedEx Freight Inc. (“FedEx Freight”) hereby request that Judgment be entered on the fifth and sixth causes of action in the operative Second Amended Complaint, and that the first, second, third and fourth causes of action be dismissed with prejudice, based on the following grounds: 1. The original Complaint in this action was filed on December 5, 2018 in Superior Court of the State of California for the County of San Joaquin and was removed to this Court by FedEx Freight on or about January 4, 2019 (See Dkt. No. 1). 2. FedEx Freight moved for partial judgment on the pleadings on Plaintiffs’ fifth and sixth causes of action, retaliation claims under California Labor Code section 923 and Business & Professions Code section 17200 et seq., asserting that Plaintiff's claims were preempted by the National Labor Relations Act (““NLRA”) pursuant to San Diego Unions v. Garmon, 359 U.S. 236, 245, 79S. Ct. 773, 3 L. Ed. 2d 775 (1959). (Dkt. No. 14). 3. On September 30, 2019, the Court granted FedEx Freight’s motion and issued an order dismissing Plaintiffs’ Fifth Cause of Action in its entirety and the Sixth Cause of action to the extent it was based on a union retaliation theory. (Dkt. No. 18 at 6:11-13.) The Court stated Plaintiffs “may (but are not required to) file an amended complaint.” Dkt. No. 18 at 6:19-20.) 4. A Second Amended Complaint was filed on October 10, 2019 (Dkt. No. 19). 5. On May 5, 2021, FedEx Freight again moved to dismiss Plaintiffs’ claims for retaliation and unfair business practices asserting that Plaintiff's claims were preempted by the National Labor Relations Act (“NLRA”) pursuant to San Diego Unions v. Garmon, 359 U.S. 236, 245, 79 S. Ct. 773, 3 L. Ed. 2d 775 (1959). (Dkt. No. 56). 6. The Court issued an Order granting FedEx Freight’s motion without leave to amend on April 19, 2022. (Dkt. No. 63). 7. FedEx Freight asserted a number of affirmative defenses to the remaining claims in the Second Amended Complaint, including the defense that certain putative class members released claims asserted in this action as part of the settlement of the class action entitled Theodore Emetoh v. FedEx Freight, Inc., United States District Court for the Northern District of California, Case No. Case No. 4:17-CV-07272-YGR, and as such, their claims are barred in whole or in part by the Emetoh REQUEST FOR ENTRY OF 1 Case No. 2:19-CV-00042-MCE-KJN CA 90067. TWINCRACRATT

settlement. In addition, in January 2021, during the pendency of FedEx Freight’s motion for partial judgment on the pleadings, the Ninth Circuit affirmed the decision in Teamsters v. FMCSA, which holds that California meal and rest break requirements are preempted by the FMCSA Hours of Service Rules (HOS rules) as applied to drivers of property-carrying commercial motor vehicles. 8. Based on this and the other affirmative defenses asserted by FedEx Freight, Plaintiffs hereby agree to voluntarily dismiss their first through fourth causes of action with prejudice. Plaintiffs and Defendant shall each bear their own costs as to Plaintiffs’ first through fourth causes of action. 9. To allow Plaintiffs to appeal the ruling granting Defendant’s motion for judgment on the pleadings as to Plaintiffs’ fifth and sixth causes of action, the Parties therefore respectfully request that the Court direct the Clerk of the Court to enter Judgment and the Judgment be entered in favor of FedEx Freight and against Plaintiffs on the Second Amended Complaint. Plaintiff and Defendant shall each bear their own costs. Plaintiff and Defendant shall each bear their own costs as to Plaintiffs’ fifth and sixth causes of action for purposes of this specific judgment only. Neither party waives any right to seek costs related to any appeal or any judgment that may be imposed upon remand relating to the fifth and sixth causes of action. 10. Plaintiffs and Defendant acknowledge that this agreement does not serve to toll any limitations period related to Plaintiffs’ first through fourth causes of action. With respect to Plaintiffs’ fifth and sixth causes of action, Plaintiffs expressly preserve and do not release any interest or personal stake that they may otherwise have as putative class representatives in this action, nor do they release or waive any right that they may have to serve as class representatives in this action upon any remand by the Court of Appeal, or to recover damages, penalties, costs, attorneys’ fees or other applicable relief that they may have as a member of any class that may subsequently be certified in this action. Plaintiffs and Defendant retain all appeal and other rights that they may have with respect to this action. REQUEST FOR ENTRY OF >. Case No. 2:19-CV-00042-MCE-KJN CA 90067. TWINCRACRATT

Dated May 12, 2022 LITTLER MENDELSON, P.C. By: /s/ KEITH JACOBY KEITH A. JACOBY SOPHIA BEHNIA LINDA N. BOLLINGER SHAHRAM SAMIE Attorneys for Defendant FedEx Freight, Inc. Dated May 12, 2022 WORKMAN LAW FIRM, PC

By: /s/ROBIN G. WORKMAN ROBIN G. WORKMAN Attorneys for Sean Leonard, Mel Mendieta, and all others similarly situated REQUEST FOR ENTRY OF 3 Case No. 2:19-CV-00042-MCE-KJN CA AR ATOATT °

ORDER Good Cause Appearing, the Court HEREBY GRANTS the Parties’ requests and directs the Clerk of the Court to enter Judgment in favor of defendant FedEx Freight, Inc. and against Plaintiffs, Sean Leonard and Mel Mendieta, on the Fifth and Sixth Actions in the second Amended Complaint. The remaining causes of action are hereby dismissed with prejudice. The Court hereby instructs the clerk to provide notice of entry pursuant to Federal Rule of Civil Procedure 77 (d). g IT IS SO ORDERED. Dated: May 24, 2022 Er ll AOA, SOE CENT Nat ce REQUEST FOR ENTRY OF 4. Case No. 2:19-CV-00042-MCE-KJN CA 90067. TWINCRACRATT