STIPULATION AND ORDER FOR COURT APPROVAL OF DISMISSAL WITHOUT PREJUDICE

MORRISON C. ENGLAND, Jr., Chief District Judge.

STIPULATION

Plaintiff David Krueger, on behalf of himself and all others similarly situated, ("Plaintiff") and Defendant Mistras Group, Inc. ("Defendant") hereby respectfully submit this Stipulation for Court Approval of Dismissal Without Prejudice pursuant to Federal Rules of Civil Procedure 23(e) and 41, to dismiss the case before the United States District Court, Eastern District of California in order to coordinate the matter by way of amended complaint with the Viceral action proceeding before the Northern District.

WHEREAS on April 10, 2015, Plaintiff filed in the Superior Court of California, County of Kern a class action complaint entitled David Krueger, et al. v. Mistras Group, Inc., et al., No. S-1500-CV-284570 ("Krueger"). (ECF Docket No. 1-2.) Therein, on behalf of himself and a putative class of similarly situated individuals, Plaintiff alleges that Defendant: (1) failed to authorize and permit and/or make available meal periods pursuant to California Labor Code sections 226.7 and 512; (2) failed to pay for all hours worked pursuant to California Labor Code section 1194; (3) failed to pay overtime wages pursuant to California Labor Code sections 510, 1194; (4) failed to provide accurate wage statements pursuant to California Labor Code section 226; (5) failed to pay all wages due at separation pursuant to California Labor Code sections 201 through 203; (6) violated California Business and Professions Code sections 17200, et seq.; and (7) violated the California Private Attorneys General Act, California Labor Code sections 2699 et seq.

WHEREAS on May 12, 2015, Defendant filed in the Superior Court of California, County of Kern, an Answer in which it generally denied each and every allegation contained in Plaintiff's Complaint. (ECF Docket No. 1-4.)

WHEREAS Defendant removed the state court action to this federal district court on May 18, 2015. (ECF Docket No. 1.)

WHEREAS Defendant filed a Notice of Related Case on May 27, 2015, identifying the related action: Edgar Viceral, et al. v. Mistras Group, Inc., et al., No. CGC-15-545291, proceeding before the Honorable Edward M. Chen in the United States District Court, Northern District of California ("Viceral"). (ECF Docket No. 3.) Viceral was filed on April 13, 2015 in the Superior Court of California, County of San Francisco. (Viceral ECF Docket No. 1.) Viceral has been filed as a collective action under the Fair Labor Standards Act, 29 U.S.C. §§ 201, et seq., ("FLSA") and as a class action. Specifically, Viceral alleges that Defendant: (1) failed to pay overtime wages pursuant to the federal Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq.;, (2) failed to pay overtime wages pursuant to California Labor Code sections 510, 1194; (3) failed to authorize and permit meal periods pursuant to California Labor Code sections 226.7, 510; (4) failed to authorize and permit rest periods pursuant to California Labor Code section 226.7; (5) failed to provide accurate wage statements pursuant to California Labor Code section 226; (6) failed to pay all earned wages up on separation from employment pursuant to California Labor Code sections 200 through 203; (7) violated California Business and Professions Code sections 17200, et seq.; and (8) violated the California Private Attorneys General Act, California Labor Code sections 2699 et seq.

WHEREAS Defendant also filed a Notice of Other Action or Proceeding on May 27, 2015 in the Viceral action, alerting the Court and Parties of the Krueger action. (Viceral ECF Docket No. 4.)

WHEREAS following the filing of these Notices, the Parties in both actions met and conferred on numerous occasions to address the relationship and possible coordination of the matters. The Parties agree that the parties and some of the substantive claims in this matter overlap with the parties and substantive claims in the Viceral case, and that coordination of the two matters before a single Court is appropriate.

WHEREAS the Parties have agreed that Krueger will be combined with Viceral before the Honorable Judge Chen in Northern District of California by way of filing an amended complaint in Viceral and adding the Krueger parties, counsel, and claims to the complaint.

WHEREAS the Parties further agree that they must submit a stipulated request for dismissal of the Krueger action pursuant to Federal Rules of Civil Procedure 23(e) and 41 in order to successfully add the Krueger parties and claims to the Viceral action. Specifically, Rule 23(e) provides, "[t]he claims, issues, or defenses of a certified class may be settled, voluntarily dismissed, or compromised only with the court's approval." FED. R. CIV. P. 23(e). Rule 41(a)(1)(A)(ii) further provides, "[s]ubject to Rule[] 23(e) . . . and any applicable federal statute, the plaintiff may dismiss an action without a court order by filing: . . . a stipulation of dismissal signed by all parties who have appeared." Fed. R. Civ. P. 41(a)(1)(A)(ii).

WHEREAS the Parties now petition the Court to approve their request that the Krueger action be dismissed without prejudice.

WHEREAS the Parties further request that the Court dismiss the case without a hearing and without notice to class members because the dismissal will not prejudice the class. This matter is largely duplicative of Viceral, and the Viceral action continues to proceed before Judge Chen in the United States District Court, Northern District of California, notice of the pendency of Krueger has not been provided to the class, and Krueger has not progressed to the class certification stage. Succinctly, dismissal of this action will not prejudice the class because their claims are being litigated in Viceral.

WHEREAS Plaintiffs will prepare a First Amended Complaint to be filed in Viceral, adding the Krueger parties and claims, and circulate it to Defendant for its review. Defendant will provide Plaintiffs with its written consent permitting Plaintiffs to file the First Amended Complaint.

AND WHEREFORE the Parties stipulate and agree that:

A Proposed Order is included below to this stipulation for the Court's signature.

ORDER ON STIPULATION

Having reviewed the Parties' request, pursuant to Federal Rules of Civil Procedure 23(e) and 41, for Court approval of the voluntary dismissal without prejudice of Krueger, the Court hereby GRANTS the Parties' request as follows:

IT IS SO ORDERED.