STIPULATED MOTION AND [PROPOSED] ORDER STAYING CASE PENDING NINTH CIRCUIT'S DECISION IN INTERNATIONAL BROTHERHOOD OF TEAMSTERS, LOCAL 2785 v. FMCSA

JAMES L. ROBART, District Judge.

RECITALS

WHEREAS, on or about August 2, 2019, Plaintiff KEVIN J. CRANE ("Plaintiff") filed his Class Action Complaint and the operative First Amended Complaint for Unpaid and Wrongfully Withheld Wages (the "Complaint") in this action in the Superior Court of the State of Washington in and for the County of King at Seattle [Dkt. #1-1];

WHEREAS, on September 3, 2019, Defendant URS MIDWEST, INC. ("Defendant") removed Plaintiff's above-described state court action to this Court [Dkt. #1] invoking the subject matter jurisdiction of this Court under the Class Action Fairness Act ("CAFA"), which the parties agree is properly invoked in this action;

PLAINTIFF'S UNPAID NON-PRODUCTIVE TIME CLAIMS

WHEREAS, in his Complaint, Plaintiff alleged a cause of action for, inter alia, Defendant's failure to pay minimum wage for all non-productive time activities (i.e., detention time, loading and unloading, pre and post-trip inspections) in violation of RCW 49,46.020, 090;

WHEREAS, in his Complaint, Plaintiff alleges that, in Sampson v. Knight Transportation, Inc., No. 2:17-cv-00028-JCC, 2018 WL 2984825, at *8-9 (W.D. Wash. June 14, 2018) (Coughenour, J.), the court "recogniz[ed] that while ... non-productive time claims were previously denied [class] certification" on the grounds that such claims were not cognizable under Washington law, the court's prior holdings were "called into question by the Washington Supreme Court's recent ruling in Caranza [sic]" [Dkt. #1-2, ¶ 16];

WHEREAS, in Sampson, the district court "conclude[d] that the law underlying Plaintiffs' on duty, not driving claim is not clearly determined, and that the Washington Supreme Court is in a better position than this Court to answer this question," see id., and therefore certified the following question to the Washington Supreme Court: "Does the Washington Minimum Wage Act require nonagricultural employers to pay their piece-rate employees per hour for time spent performing activities outside of piece-rate work?" Id. at *8-9;

WHEREAS, subsequent to Plaintiff filing his Complaint, on September 5, 2019, the Washington Supreme Court issued a decision in Sampson, et al v. Knight Transportation, Inc., Case No. 96264-2 (Wash. Sept. 5, 2019), available at http://www.courts.wa.gov/opinions/pdf/962642.pdf. The Washington Supreme Court in Sampson held that the Washington Minimum Wage Act (WMWA) does not require non-agricultural employers to pay their piece-rate employees per hour for time spent performing activities outside of piece-rate work. As such, the Parties agree Plaintiff's nonproductive time claim under the WMWA are no longer actionable;

PLAINTIFF'S PUTATIVE UNPAID NON-PRODUCTIVE TIME CLAIMS

WHEREAS, in his Complaint, Plaintiff alleged a cause of action for, inter alia, Defendant's failure to pay hourly and separate wages for time spent on statutory rest breaks apart from and in addition to piece-rate pay in violation of WAC 296-126-092(4);

WHEREAS, on or about December 21, 2018, the Federal Motor Carrier Safety Administration ("FMCSA") issued an Order1 granting the American Trucking Associations' and the Specialized Carriers and Rigging Association's petition requesting a determination that California's meal and rest break rules are preempted under 39 U.S.C. § 31141 as applied to property-carrying commercial motor vehicle drivers, which differed from an earlier decision it had made in 2008 that: "FMCSA cannot entertain this petition. Because the California meal and rest break rules are not "regulations on commercial vehicle safety," the Agency has no authority to preempt them under 49 U.S.C. 31141."2;

WHEREAS, on or about December 27, 2018, the International Brotherhood of Teamster, Local 2785 ("IBT") filed a Petition for Review of the FMCSA's December 21, 2018 Order in the U.S. Court of Appeals for the Ninth Circuit, requesting the court review and reverse the FMCSA's preemption decision, and the Ninth Circuit entered a Time Schedule Order ordering the IBT to file their opening brief on March 18, 2019, and ordering the FMCSA to file its answering brief on April 17, 2019 (the "Petition"). The Petition in International Brotherhood of Teamsters, Local 2785, Evarado Luna v. FMCSA ("IBT v. FMCSA") was assigned Case No. 18-734883;

WHEREAS, in February of 2019, three additional petitions were filed in the U.S. Court of Appeals for the Ninth Circuit seeking review of the FMCSA's December 21, 2018 Order: (1) Labor Commissioner for the State of California v. FMCSA (9th Cir. Case No. 19-70329); (2) International Brotherhood of Teamsters, International Brotherhood of Teamsters, Local 848, Charles "Lucky" Lepins, Julio Garcia, Jesus Maldonado, Jose Paz v. FMCSA, U.S. Department of Transportation (9th Cir. Case No. 19-70323); (3) Duy Nam Ly, Phillip Morgan v. FMCSA, U.S. Department of Transportation (9th Cir. Case No. 19-70413);

WHEREAS, on or about March 6, 2019, the parties to the four pending petitions filed a Joint Motion to Consolidate Cases and Set Briefing Schedule, 9th Cir. Case No. 18-73488, Dkt. #19. On May 8, 2019, the parties' joint motion was granted, and the four pending actions were consolidated and IBT v. FMCSA was designated as the Lead Case. Id. Dkt. #24. On that same day (May 8, 2019), the Ninth Circuit suspended briefing in the consolidated cases pending further order of the court. Id. Thereafter, on May 30, 2019, the Ninth Circuit issued an Order that set the following briefing schedule for the consolidated petitions:

Id. Dkt. #25. Accordingly, briefing in the now-consolidated IBT v. FMCSA matter us underway, and the Ninth Circuit has not yet scheduled oral argument thereon;

WHEREAS, the parties agree that the FMCSA's December 21, 2018 Order's validity, significance, potential application to other states, and prospective versus retroactive applicability are disputed legal issues, some of which will likely be resolved through the Ninth Circuit's resolution of the IBT v. FMCSA consolidated action, including without limitation the parties' disputed issues of whether and to what extent the FMCSA's December 21, 2018 Order is applicable and/or its temporal effectiveness in relation to Washington's rest break laws, and whether and to what extent Washington's rest break laws are preempted by the FMCSA's hours of service regulations;

WHEREAS, the parties agree that a stay of this case pending the Ninth Circuit's resolution of the IBT v. FMCSA consolidated action regarding the FMCSA's December 21, 2018 Order, which will likely bear directly upon Plaintiff's putative unpaid rest break wage claim in this action, would be prudent and efficient for both the Court and the parties. The parties further agree that good cause exists to stay this case pending resolution of the IBT v. FMCSA case, but with a full reservation, and without waiver or limitation, of the parties' respective rights, claims, remedies, defenses, and positions in this action including as to the issues recited above. A stay will also permit the parties to engage in early mediation for this matter following the exchange of informal discovery, and the parties currently aim to attend private mediation in February of 2020 or as soon as practical after the Ninth Circuit renders its decision in IBT v. FMCSA.

STIPULATION

NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED, by and between Plaintiff, on the one hand, and Defendant, on the other hand, by and through their respective undersigned counsel, and subject to the Court's approval, that:

1. The dates set forth in the Court's Rule 16(B) and Rule 23(D)(2) Scheduling Order Regarding Class Certification Motion [Dkt. #10], and all other deadlines currently set in this action be vacated, including without limitation Plaintiff's deadline to complete discovery on class certification and to move for class certification;

2. This action be stayed, in its entirety and for all purposes, pending the Ninth Circuit's decision on the IBT v. FMCSA consolidated action;

3. Within 30 business days of the Ninth Circuit's decision in IBT v. FMCSA, the parties shall file a joint status report with the Court that (1) informs the Court regarding the Ninth Circuit's decision, (2) sets forth the parties' respective and/or collective positions as to whether the stay should remain in effect, and (3) provides the Court with agreed-upon and/or proposed deadlines for [i] completion of discovery on class certification and for Plaintiff to move for class certification under Fed. R. Civ. P. 23; and [ii] submission of an updated Joint Status Report and Discovery Plan.

4. By entering into and submitting this Stipulated Motion, the parties fully reserve, and do not waive or limit, their respective rights, claims, remedies, defenses, and positions in this action, including as to the issues recited above.

[PROPOSED]ORDER

This matter came before the Court on the parties' Stipulated Motion Staying Case Pending Ninth Circuit's Decision in International Brotherhood of Teamsters, Local 2785 v. FMCSA (the "Stipulated Motion"). The Court, having reviewed the Stipulated Motion, and good cause appearing for the relief sought therein, hereby orders as follows:

1. The dates set forth in the Court's Rule 16(B) and Rule 23(D)(2) Scheduling Order Regarding Class Certification Motion [Dkt. #10], and all other deadlines currently set in this action shall be and hereby are vacated, including without limitation Plaintiff's deadline to complete discovery on class certification and to move for class certification;

2. This action shall be and hereby is stayed, in its entirety and for all purposes, pending the Ninth Circuit's decision in International Brotherhood of Teamsters, Local 2785 v. FMCSA ("IBT v. FMCSA") Case No. 18-73488;

3. Within 30 business days of the Ninth Circuit's decision in IBT v. FMCSA, the parties shall file a joint status report with the Court that (1) informs the Court regarding the Ninth Circuit's decision, (2) sets forth the parties' respective and/or collective positions as to whether the stay should remain in effect, and (3) provides the Court with agreed-upon and/or proposed deadlines for [i] completion of discovery on class certification and for Plaintiff to move for class certification under Fed. R. Civ. P. 23; and [ii] submission of an updated Joint Status Report and Discovery Plan.

4. The parties' entering into and submission of this Stipulated Motion is without waiver or limitation of their respective rights, claims, remedies, defenses, and positions in this action, including as to the issues recited therein.

IT IS SO ORDERED.