Free Motion for Order - District Court of California - California

Case 3:08-cv-00393-H-POR

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1 Michael S. Lavenant, Esq. - State Bar No. 198765 2 [email protected] 3 A Law Corporation 4 15760 Ventura Boulevard, Suite 1200

LANDEGGER, BARON & LAVENANT

Encino, California 91436

5 Telephone: (818) 986-7561 6 Facsimile: (8181) 986-5147 7 8 Attorneys for Defendant R. J. Reynolds Tobacco Company 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA

DAWN D. RADCLIFFE, individually, and on behalf of a class of others similarly situated, Plaintiffs, vs. R. J. REYNOLDS TOBACCO COMPANY, a North Carolina Corporation, Defendants.

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CASE NO.: 08 CV 0393 H POR ASSIGNED FOR ALL PURPOSES TO JUDGE LOUISA A. PORTER JOINT MOTION TO TRANSFER MATTER TO OTHER DISTRICT COURT CASE FILED: February 29, 2008 DISCOVERY CUT-OFF:NONE MOTION CUT-OFF:NONE TRIAL DATE: NONE

Plaintiff Dawn D. Radcliffe, the remaining Plaintiffs who have consented

26 to join this action, and Defendant R.J. Reynolds Tobacco Company (hereinafter 27 28 1 CV 08-0393 H (POR)
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"the Parties"), by and through their attorneys of record, jointly move this Court

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1 to transfer this case in its entirety to the United States District Court for the 2 3 4 same defendant, similar claims, and plaintiffs who worked in the same job 5 category as the plaintiffs in the instant case. The Parties hereby stipulate and 6 7

Western District of Missouri, where a very similar case is pending involving the

agree to the following:

8 WHEREAS, Plaintiffs work or worked for Defendant in the position of Retail 9 10 11

Representative. In this lawsuit, they bring a proposed class and collective action on behalf of themselves and other former and current Retail Representatives in

12 the State of California for back wages they allege they are owed under state and 13 14 15 Retail Representatives throughout the country (including the State of California) 16 are already being litigated in the United States District Court for the Western 17 18

federal law. However, such claims under federal law of former and current

District of Missouri in a case captioned Zola M. Marshall v. R.J. Reynolds

19 Tobacco Company, Case No. 07-0227-CV-W-RED (hereinafter "the Marshall 20 21 22 23 24
1

case"), which was initiated on March 19, 2007 and in which Plaintiffs counsel is also representing the plaintiffs therein. 1

In addition, a similar case was also filed in the United States District Court for the Northern

25 District of New York by former and current Retail Representatives in the State of New York, and the 26 Reynolds Tobacco Company, Civil Action No. 08-CV-0175 (TJM-DEP). As the Parties in the instant 27 its entirety to the Western District of Missouri. The Consent Order of Transfer was entered by that 28
Court on June 3, 2008. plaintiffs to that action were also represented by Plaintiffs counsel in the instant case. Dinino v. R.J. case now do, the parties to the New York federal court action asked that Court to transfer that case in

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WHEREAS, the Marshall case has progressed significantly further than the instant case. The parties to that action have engaged in some discovery, the

4 case has been conditionally certified as a collective action under the Fair Labor 5 Standards Act (FLSA), and notice was sent to 1,178 former and current Retail 6 7

Representatives (including Plaintiffs herein and all other individuals who had

8 worked in California as a Retail Representative during the relevant time period) 9 10 11

informing them of that action and their right to join it. This case, on the other hand, has not progressed beyond the filing of the initial pleadings and no

12 discovery has taken place. 13 14 15 share similar legal issues, the identical defendant, and overlap in proposed 16 classes of plaintiffs. In such a circumstance, there exists in the law a doctrine 17 18

WHEREAS, the Parties agree that the instant case and the Marshall case

known as the first-filed rule (or the first-to-file rule) that provides for the

19 dismissal, transfer, or stay of the second-filed case in favor of the first. "The 20 21 22

purpose of the rule is ,,to avoid the waste of duplication, to avoid rulings which may trench upon the authority of sister courts, and to avoid piecemeal resolution

23 of issues that call for a uniform result." White v. Peco Foods, Inc., Civil Action 24 25 26 (FLSA case) (citing West Gulf Maritime Ass'n v. ILA Deep Sea Local 24, 751 27 F.2d 721, 729 (5th Cir. 1985)). 28 3 CV 08-0393 H (POR)
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No. 4:07cv18-KS-MTP, 2008 WL 542841, at *2 (S.D. Miss. Feb. 22, 2008)

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1 WHEREAS, the United States Court of Appeals for the Ninth Circuit has held 2 3 4 efficiency well and should not be disregarded lightly." Alltrade, Inc. v. Uniweld 5 Products, Inc., 946 F.2d 622, 623 (9th Cir. 1991) (collecting citations). This 6 7

that "[t]he first-to-file rule was developed to ,,serve[ ] the purpose of promoting

Court has noted that "[t]he Alltrade court set forth three prerequisites for

8 application of the first to file rule: (1) chronology of the two actions; (2) 9 10 11

similarity of the parties; and (3) similarity of the issues." Brighton Collectibles, Inc. v. Coldwater Creek, Inc., No. 06 CV-1848-H (JMA), 2006 WL 4117032, at

12 *2 (S.D. Cal. Nov. 21, 2006) (citing Alltrade, 946 F.2d at 625). The Parties 13 14 15 case. 16 NOW, THEREFORE, the Parties agree that this case should be transferred to the 17 18

agree that all three prerequisites exist with regard to this case and the Marshall

United States District Court for the Western District of Missouri pursuant to the

19 first-filed rule, and therefore have asked the Court to do so through this joint 20 21 22

motion. The Parties will then move the Missouri federal court to consolidate this case with the pending Marshall case. White, 2008 WL 542841, at *2 (S.D. Miss.

23 Feb. 22, 2008) (FLSA case) (citing Sutter Corp. v. P & P Indus., Inc., 125 F.3d 24 25 26 /// 27 /// 28 4 CV 08-0393 H (POR)
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914, 920 (5th Cir. 1987)).

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1 Jointly requested by the Parties on this 24th day of June, 2008, 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 5 CV 08-0393 H (POR)
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/s/ George A. Hanson STUEVE SIEGEL HANSON, LLP George A. Hanson Matthew L. Dameron Legal Counsel for Plaintiff 460 Nichols Parkway, Suite 200 Kansas City, MO 64112 Telephone: (619) 235-4040 Facsimile: (619) 231-8796 ROSS DIXON AND BELL Jason S. Hartley Local Counsel for Plaintiff 550 West B Street, Suite 400 San Diego, CA 92101-3599 Telephone: (816) 714-7100 Facsimile: (816) 714-7101

/s/ Michael S. Lavenant LANDEGGER, BARON & LAVENANT Michael S. Lavenant, Esq. - State Bar No. 198765 [email protected] Local Counsel for Defendant 15760 Ventura Boulevard, Suite 1200 Encino, California 91436 Telephone: (818) 986-7561 Facsimile: (818) 986-5147

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PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES CASE NAME: Dawn D. Radcliffe v. R. J. Reynolds Tobacco Company Case No.: 08 CV 0393 H POR I declare as follows: I am employed in the County of Los Angeles, California. I am over the age of 18 years, and not a party to the within action; my business address is 15760 Ventura Boulevard, Suite 1200, Encino, California 91436. I am readily familiar with my employers business practice for collection and processing of correspondence for mailing with the United States Postal Service. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing affidavit.

On June 25, 2008, I served a true and correct copy, with all exhibits, of the following documents described as: 13
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JOINT MOTION TO TRANSFER MATTER TO OTHER DISTRICT COURT On the party or parties named below, by personally delivering a true copy thereof on at approximately _____ p.m. at ___________(Personal service) On the party or parties named below, by following ordinary business practice, placing a true copy thereof enclosed in a sealed envelope, for collection and mailing with the United States Postal Service, where it would be deposited for first class delivery, postage fully prepaid, in the United States Postal Service, that same day in the ordinary course of business, addressed as set forth below. (Regular office deposit) On the interested parties in the within action by placing the above documents in the United States mail for Express Mail delivery at 15760 Ventura Boulevard, Encino, California 91436 in a sealed envelope, with Express Mail postage thereon fully prepaid; by depositing copies of the above documents in a box or other facility regularly maintained by Federal Express, in an envelope or package designated by Federal Express Airbill

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No. ***, with delivery fees paid by senders account. (Code of Civil Procedure §1013(c).) (Overnight delivery service) On the interested parties in the within action by transmitting via facsimile machine to the name(s) and facsimile number(s) set forth below. (Facsimile) On the interested parties in the within action by transmitting via electronic mail by providing the document(s) to the Courts electronic filing system pursuant to their instructions on that website. (E-mail) SEE ATTACHED SERVICE LIST

I certify under penalty of perjury under the laws of the State of California 11 that the foregoing is true and correct and that this declaration was executed on June 25, 2008 at Encino, California.
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By: /s/ Ida Mamedova Signature of Declarant

By: IDA MAMEDOVA Type or Print Name of Declarant

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SERVICE LIST CASE NAME: Dawn D. Radcliffe v. R. J. Reynolds Tobacco Company Case No.: 08 CV 0393 H POR George A. Hanson Matthew L. Dameron Stueve Siegel Hanson, LLP 460 Nichols Parkway Suite 200 Kansas City, MO 64112 Jason S. Hartley Ross Dixon and Bell 550 West B Street Suite 400 San Diego, CA 92101-3599

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