1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 CHARLES WHITTINGTON, No. 2:20-cv-00600 WBS CKD individually, and on behalf of 13 others similarly situated, 14 Plaintiff, MEMORANDUM AND ORDER RE:

DEFENDANT’S MOTION TO STAY

15 v. 16 WALGREEN CO., an Illinois corporation, and DOES 1-50, 17 inclusive, 18 Defendants. 19 20 ----oo0oo---- 21 Plaintiff Charles Whittington filed this action 22 individually, and on behalf of other similarly situated, against 23 defendants Walgreen Co. and Does 1 through 50, alleging several 24 wage and hour claims under the California Labor Code. Before the 25 court is defendant Walgreen Co.’s motion to stay the proceedings. 26 (Docket No. 7.) 27 I. Relevant Factual Information 28 On November 6, 2018, a wage and hour class action 1 lawsuit was filed against defendant Walgreen, entitled Lucas 2 Mejia v. Walgreen Co., Case No. 2:19-cv-00218-WBS-AC, which is 3 also currently pending before this court. The Mejia action 4 alleges the following wage and hour claims: (1) failure to pay 5 minimum wages; (2) failure to pay overtime wages; (3) failure to 6 provide meal periods; (4) failure to authorize and permit rest 7 periods; (5) failure to provide accurate itemized wage 8 statements; (6) failure to timely pay all wages after separation 9 of employment; and (7) unlawful business practices, Cal. Bus. & 10 Profs. Code §§ 17200, et seq. (Declaration of Christopher J. 11 Archibald (“Archibald Decl.”), ¶ 2, Ex. A). Plaintiff Mejia 12 alleged his claims individually and on behalf of current and 13 former non-exempt employees who have worked in defendant’s 14 distribution centers. (Archibald Decl., Ex. A, Mejia Compl. ¶ 1). 15 Over a year later, on January 24, 2020, plaintiff 16 Whittington -- a former employee who worked in one of defendant’s 17 California distribution centers -- filed this wage and hour class 18 action against defendant alleging the following claims: (1) 19 failure to provide required meal periods; (2) failure to provide 20 required rest periods; (3) failure to pay overtime wages; (4) 21 failure to pay minimum wages; (5) failure to pay all wages due to 22 discharged and quitting employees; (6) failure to maintain 23 required records; (7) failure to furnish accurate itemized wage 24 statements; (8) failure to indemnify employees for necessary 25 expenditures incurred in discharge of duties; (9) unfair and 26 unlawful business practices, Cal. Bus. & Profs. Code §§ 17200, et 27 seq. ; and (10) penalties under the Private Attorneys General 28 Act, Cal. Labor Code §§ 2698-2699.5. (See generally Compl. 1 (Docket No. 1).) Like the Mejia action, this action seeks to 2 represent the same putative class comprised of all current and 3 former non-exempt employees of defendant who work or worked at 4 its distribution centers in California. (Compl. ¶ 5.) Defendant 5 now moves to stay the present action pending the resolution of 6 Mejia. 7 II. Discussion 8 “The first-to-file rule allows a district court to 9 transfer, stay, or dismiss an action when a similar complaint has 10 already been filed in another federal court.” Kohn Law Grp., 11 Inc. v. Auto Parts Mfg. Miss., Inc., 787 F.3d 1237, 1239 (9th 12 Cir. 2015). The rule “is intended to serve[ ] the purpose of 13 promoting efficiency well and should not be disregarded lightly.” 14 Id. at 1239. 15 “In applying the first-to-file rule, a court looks to 16 three threshold factors: ‘(1) the chronology of the two actions; 17 (2) the similarity of the parties; and (3) the similarity of the 18 issues.’” Adoma v. Univ. of Phoenix, Inc., 711 F. Supp. 2d 1142, 19 1146 (E.D. Cal. 2010) (citing Alltrade, Inc. v. Uniweld Prod., 20 Inc., 946 F.2d 622, 625 (9th Cir. 1991)). “The issues in both 21 cases . . . need not be identical, only substantially similar.” 22 Kohn Law Grp., 787 F.3d at 1240–41 (citing Int’l Fid. Ins. Co. v. 23 Sweet Little Mex. Corp., 665 F.3d 671, 677–78 (5th Cir. 2011)). 24 “If this action meets the requirements of the first-to-file rule, 25 the court has the discretion to transfer, stay, or dismiss the 26 action.” Id. 27 Here, plaintiff does not contest (1) that the Mejia 28 action was filed before the present action, (2) that the 2.40 VOUS VDD IAL PYVUULPPIOEIL tt PUM VVrcvuicy PaQyet ‘Fr Vi ’t

1 defendant and proposed putative classes in the Mejia and the 2 instant action are the same, and (3) that the issues and claims 3 involved in both actions are substantially similar. (See 4 generally Opp’n (Docket No. 8).}) Plaintiff argues only that the 5 claims alleged in both actions are not identical. (Id. at 1.) 6 However, because only two of plaintiff’s ten claims do not 7 overlap with the Mejia action,! the court finds that there is 8 “substantial overlap’ between the two suits” and that the issues 9 are therefore substantially similar. See Kohn Law Grp., 787 F.3d 10 at 1241 (quoting Harris Cty., Tex. v. CarMax Auto Superstores 11 Inc., 177 F.3d 306, 319 (5th Cir. 1999)). Because this action 12 meets all three requirements of the first-to-file rule, the court 13 will exercise its discretion to stay the proceedings.? See 14 Adoma, 711 F. Supp. 2d at 1146. 15 IT IS THEREFORE ORDERED that defendant’s motion to stay 16 (Docket No. 7) be, and the same hereby is GRANTED. The Clerk is 17 instructed to administratively close the file in this case, 18 subject to its being reopened upon application of any party after 19 final disposition of the case in Mejia v. Walgreen Co., No 2:19- 20 cv-00218 WBS-AC. . 21 | pated: June 25, 2020 ahi hem A fh be

WILLIAM B. SHUBB

22 UNITED STATES DISTRICT JUDGE 1 The only non-overlapping claims are plaintiff 24 | Whittington’s claims for failure to maintain required records and failure to indemnify for necessary expenditures incurred in the 29 discharge of duties. 26 2 The court notes that both cases are before the same 27 judge, which further supports the court’s conclusion that staying the proceedings here would “promot[e] efficiency.” See Kohn Law 28 Gro., 787 F.3d at 1239.