1

2 UNITED STATES DISTRICT COURT 3 NORTHERN DISTRICT OF CALIFORNIA 4

5

6 KASPER LEUZINGER, Case No.: 21-CV-4952-YGR

7 Plaintiff, ORDER DENYING MOTION TO DISMISS OR STAY AND GRANTING MOTION TO 8 vs. CONSOLIDATE

9 GARDNER TRUCKING, INC. AND CRST Re: Dkt Nos. 12, 17 EXPEDITED, INC., 10 Defendants. 11 12 On June 28, 2021, plaintiff Kasper Leuzinger filed this putative class action against Gardner 13 Trucking, Inc., and CRST Expedited, Inc., alleging violations of the California Labor Code, the 14 Fair Labor Standards Act, and California’s Unfair Competition Law. (Dkt. No. 1.) Defendant 15 CRST Expedited, Inc. d/b/a CRST The Transport Solution, Inc. – Dedicated West f/k/a Gardner 16 Trucking, Inc. has moved to dismiss or stay this action based on the first-to-file rule in light of the 17 earlier filed related action Castro v. Gardner Trucking, Inc., 20-CV-5473-YGR, also pending 18 before this Court. (Dkt. No. 12.) Plaintiff subsequently moved to consolidate this action with the 19 Castro action. (Dkt. No. 17.) For the reasons stated below, the Court DENIES the motion to 20 dismiss or stay and GRANTS the motion for consolidation. 21 “The first-to-file rule allows a district court to stay proceedings if a similar case with 22 substantially similar issues and parties was previously filed in another district court.” Kohn Law 23 Group, Inc. v. Auto Parts Mfg. Mississippi, Inc.,

(9th Cir. 2015). The first-to- 24 file rule “is designed to avoid placing an unnecessary burden on the federal judiciary, and to avoid 25 the embarrassment of conflicting judgments.” Church of Scientology of Cal. v. United States Dep’t 26 of the Army,

(9th Cir. 1979), overruled on other grounds by Animal Legal 27 Defense Fund v. U.S. Food & Drug Admin.,

(9th Cir. 2016). Moreover, the first-to- 28 file rule is discretionary. See Alltrade, Inc. v. Uniweld Prods., Inc.,

(9th Cir. 1 1991) (“The most basic aspect of the first-to-file rule is that it is discretionary; ‘an ample degree of 2 discretion, appropriate for disciplined and experienced judges, must be left to the lower courts.’”) 3 (quoting Kerotest Mfg. Co. v. C-O-Two Fire Equip. Co.,

, 183–84 (1952)). 4 In arguing for the application of the first-to-file rule, defendant submits that Castro was the 5 first filed action, both actions “cover virtually the same putative class and claims against the same 6 defendant,” and the issues are similar “because both class actions involve [d]efendant’s alleged 7 failures to comply with overlapping sections of the California Labor Code and FLSA against 8 nonexempt employees.” (Dkt. No. 10–13.)1 While plaintiff responds, inter alia, that the first-to- 9 file rule does not apply to matters before the same court and the same judge (Dkt. No. 19 at 3–4), 10 defendant counters that the rule applies to actions filed in the same district (Dkt. No. 20 at 1–2). 11 Defendant’s rebuttal, however, does not address the present situation in which the actions at issue 12 are pending before the same judge. 13 “[T]he concerns justifying the application of the first-to-file rule, particularly those relating 14 to federal comity, do not apply when both cases are pending before the same judge in the same 15 court.” Rodriguez v. Taco Bell Corp., No. 13-CV-1498-SAB,

, at *3 (E.D. Cal. 16 Oct. 30, 2013); see also Automated Logic Contracting Servs., Inc. v. Sprig Electric Co., No. 17- 17 CV-5910 (EJD),

, at *2 (N.D. Cal. Feb. 20, 2018) (“When, as here, the two 18 actions are before the same judge, neither comity nor efficiency need to be separately promoted.”); 19 Sheehy v. Santa Clara Valley Transp. Auth., No. 14-CV-1325 (PSG),

, at *2 20 (N.D. Cal. June 4, 2014) (“Even though the threshold factors are satisfied, the justifications for 21 application of the first-to-file do not resonate because the undersigned presides over the two

22 1 The Castro action is brought by a former employee truck driver seeking to represent the 23 following class: “All persons who worked for Defendants GARDNER, in the State of California as a truck driver or other similar job title at any time on or after April 6, 2016.” (No. 20-CV-5473, 24 Dkt. No. 1-1, ¶ 18.)

25 The instant action is brought by a current non-exempt hourly employee seeking to represent 26 an hourly employee class defined as follows: “All persons employed by Defendants and/or any staffing agencies any/or any other third parties in hourly or non-exempt positions in California 27 during the Relevant Time Period.” (No. 21-CV-4952, Dkt. No. 1, ¶ 13.) Plaintiff also seeks to represent a meal period sub-class, rest period sub-class, waiting time penalties sub-class, wage 28 statement penalties class, UCL class, and expense reimbursement class. (Id.) 1 || parallel actions at issue.”); Lantig n. Am., Inc. v. Ralink Tech. Corp., No. 11-CV-234 (EJD), 2011 2 || WL 2600747, at *9 (N.D. Cal. June 30, 2011) (“Because both matters have been ordered related 3 || and are now pending before the same Judge, the Court concludes that the ‘first to file rule’ does not 4 || apply.”). “Since one judge controls both cases, the litigation can be arranged in the manner most 5 || advantageous to the parties and the court.” Automated Logic,

, at *2.? 6 Because both actions at issue are pending before the undersigned, application of the first-to- 7 || file rule is not appropriate. Therefore, the Court DENIES the motion to dismiss or stay this action in 8 || light of the Castro action. Moreover, for the same reasons submitted by defendant in support of its 9 |)own motion, the Court hereby GRANTS the motion to consolidate this action with the Castro action. 10 || The Court is not persuaded that the filing of the present action constitutes venue shopping or that 11 || consolidation would cause unnecessary delay, confusion, or prejudice, as alleged by defendant. In 12 || fact, given the overlapping issues, economies are gained by consolidation. To the extent that the 5 13 || schedule needs to be adjusted, the parties may request to be placed on a case management calendar. 14 The Clerk of Court shall consolidate this action with Case No. 20-CV-5473-YGR and Gy 15 || administratively close this case. 16 This Order terminates Docket Numbers 12 and 17. 17 IT Is SO ORDERED. Ss

a Date: September 22, 2021 19 YVONNE GONZAEEZ ROGE 20 UNITED STATES DISTRICT COURT JUDGE 21 22 . 2 Defendant cites Wallerstein v. Dole Fresh Vegetables, Inc.,

(N.D. 23 || Cal. 2013) and Abrahams v. Hard Drive Prods., Inc., No. 12-CV-1006 (JCS),

, at *1 (N.D. Cal. May 30, 2012), for the proposition that the first-to-file rule applies to cases filed in 24 |! the same district. (Dkt. No. 20 at 2-3.) However, in Wallerstein, the two cases at issue were in 95 different districts at the time this Court decided that the first-to-file rule applied. See Wallerstein,

. In Abrahams, the two actions at issue, while filed in the same district, 26 || were pending before different judges. See Abrahams,

at *7. Accordingly, neither case supports applying the rule in the present situation where two actions are pending before 27 | the same judge. Nor has the Ninth Circuit addressed the applicability of the first-to-file rule to such || circumstances.