STIPULATION RE: LEAVE TO FILE FIRST AMENDED COMPLAINT TO ADD A "DOE 1" DEFENDANT AND DISMISS WITHOUT PREJUDICE HCR MANORCARE; HCR MANORCARE MEDICAL SERVICES OF FLORIDA, LLC; AND MANOR CARE, INC.; [PROPOSED] ORDER THEREON
LUCY H. KOH, District Judge.
Plaintiff ELSY GARCIA DE MIRA ("Plaintiff") and Defendants HCR MANORCARE, INC. [erroneously sued as HCR MANORCARE]; HCR MANORCARE MEDICAL SERVICES OF FLORIDA, LLC; and MANORCARE, INC. ("Defendants"), by and through their respective counsel, hereby enter into the following Stipulation Re: Leave To File First Amended Complaint To Add A DOE "1" Defendant And Dismiss Without Prejudice HCR MANORCARE MEDICAL SERVICES OF FLORIDA, LLC; and MANORCARE, INC. ("Stipulation"). Specifically, by and through this Stipulation, the parties request that the Court grant Plaintiff leave to file a First Amended Complaint ("FAC"), in the form attached hereto as Exhibit "1", which seeks to add a newly named defendant, HEARTLAND EMPLOYMENT SERVICES, LLC ("Heartland"), in place of defendant DOE "1" and dismiss without prejudice HCR MANORCARE INC., HCR MANORCARE MEDICAL SERVICES OF FLORIDA, LLC; and MANORCARE, INC. The parties mutually request that the Court approve this Stipulation and enter an order in accordance thereon.
STIPULATION
1. The original Complaint in this action was filed on August 3, 2012 against HCR ManorCare, Inc. [erroneously sued as HCR ManorCare]; HCR ManorCare Medical Services Of Florida, LLC; and ManorCare, Inc.
2. Plaintiff asserts putative class action claims for violation of various wage and hour laws premised on contentions that the employer of Plaintiff and other hourly employees working in California allegedly did not: provide lawful meal and rest breaks; pay for all hours and/or overtime hours worked as a result of rounding employee time; provide accurate itemized wage statements; pay timely wages owed upon termination of the employment relationship; and other such derivative claims for restitution, penalties, and/or equitable relief.
3. HCR ManorCare, Inc., HCR ManorCare, Medical Services Of Florida, LLC, and ManorCare, Inc. maintain that they are improperly named defendants in this employment action because they never employed Plaintiff Elsy De Mira. Defendants contend that the proper legal entity that employed Plaintiff De Mira is Heartland Employment Services, LLC.
4. Based on information learned subsequent to filing suit, including the Joint Case Management Statement, Initial Disclosures, meet and confer exchanges, and statements under oath submitted by way of declaration, Plaintiff hereby moves the Court for leave to file a First Amended Complaint ("FAC") that adds a newly-named defendant, Heartland Employment Services, LLC, in place of defendant DOE 1. Defendants, while denying all of Plaintiff's allegations, have no objection to the filing of the proposed First Amended Complaint that would assert the same pending causes of action and allegations against Heartland Employment Services, LLC and in lieu of the identified Defendants discussed below.
5. Defendants have requested that Plaintiff dismiss her claims against HCR ManorCare, Inc., HCR ManorCare Medical Services Of Florida, LLC, and ManorCare, Inc. on the grounds that they did not act as an employer with respect to Plaintiff or putative class members in California during the statutory period. Based on information learned subsequent to filing suit, including the Joint Case Management Statement, Initial Disclosures, meet and confer exchanges, and statements submitted under oath by way of declaration, Plaintiff has agreed to dismiss her claims against HCR ManorCare, Inc., HCR ManorCare Medical Services Of Florida, LLC, and ManorCare, Inc. without prejudice.
6. The parties recognize that Plaintiff propounded Plaintiff's First Set Of Interrogatories To HCR ManorCare [Re: HCR ManorCare entities] ("Plaintiff's First Set Of Rogs") and Plaintiff's First Set Of Requests For Production of Documents To HCR ManorCare [Re: HCR ManorCare entities] ("Plaintiff's First Set Of RPDs") served on February 6, 2013. In light of the proposed FAC and dismissal of the identified Defendants, the parties agree to continue the deadline for responses to Plaintiff's First Set Of Rogs and Plaintiff's First Set Of RPDs indefinitely and date undetermined. Plaintiff currently believes these discovery requests are unnecessary.
7. Notwithstanding the above indefinite continuance, if at some point, Plaintiff believes responses to Plaintiff's First Set Of Rogs and/or Plaintiff's First Set Of RPDs are necessary and appropriate, Plaintiff will provide written notice and the corresponding responses (and objections) will be due thirty (30) day after that notice is provided, or as otherwise agreed. Further, while reserving all other rights and objections, in the event Plaintiff provides the above-described notice, Defendant Heartland Employment Services, LLC agrees that it will not refuse to respond to these discovery requests on the grounds that the propounded entities are no longer party to the suit.
8. The parties further agree that the other written discovery requests served by Plaintiff on February 6, 2013, to wit: Plaintiff's Second Set Of Interrogatories To HCR ManorCare [Re: Policies And Practices]; Plaintiff's Second Set Of Requests For Production Of Documents To HCR ManorCare [Re: Policies And Practices]; Plaintiff's Third Set Of Interrogatories To HCR ManorCare [Re: Class Contact Info]; and Plaintiff's Third Set Of Requests For Production Of Documents To HCR ManorCare [Re: Class Contact Info] are effective as if propounded to proposed Doe "1" defendant, Heartland Employment Services, LLC, and will be due in accordance with the agreement of the parties and undersigned counsel. The parties further agree that the discovery requests served by Heartland Employment Services, LLC, on March 1, 2013 are effective as if Heartland Employment Services LLC was then a Defendant in this action with all associated rights to propound written discovery, and Plaintiff will not object or refuse to respond to that discovery on the basis that the discovery requests were propounded by a non-party or that Heartland Employment Services, LLC, was not the employer of Plaintiff and the putative class members.
9. The parties mutually request that the Court grant Plaintiff leave to file a First Amended Complaint in the form proposed herein within 5 days after entry of this order. The parties further mutually agree that Defendant Heartland Employment Services, LLC shall have 14 days after the filing of Plaintiff's First Amended Complaint to file a responsive pleading.
[PROPOSED] ORDER
Good cause appearing therefore, the foregoing Stipulation Re Leave To File First Amended Complaint ("Stipulation") is hereby approved and it is hereby ordered that:
1. Plaintiff is granted leave to file a First Amended Complaint in the form attached as Exhibit "1" to the parties' Stipulation. The First Amended Complaint shall be filed and served on Defendants' counsel of record within 5 days after entry of this order.
2. Upon the filing of the First Amended Complaint, Plaintiff's claims against defendants HCR ManorCare, Inc. [erroneously sued as HCR ManorCare], HCR ManorCare Medical Services of Florida, LLC, and Manor Care, Inc. shall be dismissed without prejudice, with each party to bear its own costs and newly-named defendant. Heartland Employment Services. LLC, will be added and substituted as "Doe 1" defendant.
3. Upon the filing of the First Amended Complaint, defendant Heartland Employment Services, LLC shall have 14 days thereafter to file a responsive pleading.
