Joint Case Management Statement
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MOIRA C. McQUAID, Bar No. 154232 LAW OFFICES OF MOIRA C. MCQUAID 830 Burlway Road Burlingame, CA 94010 Telephone: 650.359.2545 Facsimile: 650.359.2533 Attorneys for Plaintiffs ASHANKA STAGG, DAMIAN SEQUOIA, LUCIAN BALMER, SUNDARI MICHAELIAN GARRY G. MATHIASON, Bar No. 051119 MICHAEL F. MCCABE, Bar No. 111151 APRIL N. LOVE, Bar No. 255527 LITTLER MENDELSON A Professional Corporation 650 California Street, 20th Floor San Francisco, CA 94108.2693 Telephone: 415.433.1940 Facsimile: 415.399.8490 Email: [email protected] [email protected] Attorneys for Defendants SRI CHINMOY SOCIETY, INC. and SRI CHINMOY CENTRE JAMES T. DIAMOND, JR., Bar No. 131525 XOCHITL CARRION, Bar No. 252733 GOLDFARB & LIPMAN 1300 Clay Street, Ninth Floor City Center Plaza Oakland, CA 94612 Telephone: 510.836.6336 Facsimile: 510.836.1035 Email: [email protected] Attorneys for Defendants ANANDA FUARA RESTAURANT, GARIMA, INC. and GARIMA HOFFMAN
JOINT CASE MANAGEMENT STATEMENT AND [PROPOSED] ORDER
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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA ASHANKA STAGG, DAMIAN SEQUOIA, LUCIAN BALMER and SUNDARI MICHAELIAN, Plaintiffs, v. ANANDA FUARA RESTAURANT; an entity, form unknown; GARIMA, INC., a corporation; GARIMA HOFFMANN, an individual; SRI CHINMOY SOCIETY, INC., a corporation; SRI CHINMOY CENTRE, an entity, form unknown; and DOES 1-100, inclusive, Defendants. Case No. CV 10-02768 JSW JOINT CASE MANAGEMENT STATEMENT AND [PROPOSED] ORDER Date: Time: Courtroom: Judge: October 22, 2010 1:30 pm 11, 19th Floor Hon. Jeffrey S. White
Pursuant to Rule 26(f) of the Federal Rules of Civil Procedure and in accordance with the Standing Order for All Judges in the Northern District of California, the parties in this matter hereby submit this Joint Case Management Statement. 1. JURISDICTION AND SERVICE The basis for the Court’s subject matter jurisdiction over Plaintiffs’ claims is federal question jurisdiction (28 U.S.C. § 1331 and 29 U.S.C. § 216(b) of the Fair Labor Standards Act (“FLSA”)). There are no parties that remain to be served except to the extent that Plaintiffs identify DOE defendants. 2. FACTS (a) Plaintiffs’ Chronology of the Facts Plaintiffs Ashanka Stagg, Damian Sequoia, Lucian Balmer and Sundari Michaelian worked a collective 62 years at Defendants’ vegetarian Ananda Fuara Restaurant in San Francisco. Two of the four Plaintiffs are over 60, one is in her late 50s and one is in his 20s. Plaintiffs worked in the restaurant in various capacities either as servers, bakers, dish washers, or preparers of food.
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Besides working at the Ananda Fuara Restaurant, Plaintiffs also were followers of the teachings of Chinmoy Kumar Ghose and members of a spiritual group called the Sri Chinmoy Centre, a named defendant in this action. Each of the Plaintiffs was assigned by Ghose to work at his enterprise business, the Ananda Fuara Restaurant. The Plaintiffs were promised by Defendants that they would have a job at the restaurant as long as they wanted to work. While working for Defendants, Plaintiffs also observed Defendants’ practice of continuing to pay former employees when they became too old or infirm to continue working. Plaintiffs had the expectation that Defendants would likewise continue to pay them when they became too old or infirm to continue working. In agreeing to work for Defendants under these conditions, each of the Plaintiffs gave up opportunities to pursue other gainful employment. During their 62 collective years of employment at the Ananda Fuara Restaurant, Plaintiffs each received from Defendants a fixed weekly stipend that never amounted to more than $150.00 per week. The stipends bore no relationship to the actual number of hours each Plaintiff worked. As a result, Plaintiffs were not paid minimum wages or overtime wages in conformity with the rates set forth in the Fair Labor Standards Act (“FLSA”), the California Labor Code, the San Francisco Minimum Wage Ordinance or Wage Order 5-2001. The Plaintiffs also were required by Defendants to relinquish the tips they collected from the customers of the restaurant and give the tip money to Defendants. Between November 6, 2009 and January 23, 2010, each of the Plaintiffs was terminated from employment by Defendants because the Plaintiffs discussed allegations that appeared on the Internet that Ghose had engaged in inappropriate sexual conduct with several female members of the Sri Chinmoy Centre. Some of the allegations of inappropriate sexual conduct against Ghose came from a female former Ananda Fuara Restaurant employee, who was known to the Plaintiffs. Plaintiffs allege that their termination under these circumstances violated Labor Code § 232.5, which protects employees who disclose information about the conditions at their work. Since their termination, the Plaintiffs have not succeeded in obtaining full-time alternate employment and continue to accrue damages. //
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(b)
Defendants’ Chronology of the Facts 1. Defendants Ananda Fuara Restaurant and Garima Hoffman.
Ms. Hoffmann owns and operates the Ananda Fuara Restaurant (the "Restaurant") in San Francisco, and operates the Restaurant as a dba. As addressed in the Restaurant's web site, the Restaurant is a Sri Chinmoy divine enterprise that specializes in vegetarian and vegan cuisine. The Restaurant is neither funded by nor operated by the Sri Chinmoy church. Plaintiffs were for the most part long-term employees at the Restaurant. None of the employees at the Restaurant had an oral or written contract of employment. Plaintiffs were
compensated in cash payments, food, travel reimbursements, other expense reimbursements, and payment of some medical expenses. They also shared in the tip pool. Plaintiff Stagg's employment was terminated; although there was no contract for employment, her employment was terminated with good cause, for legitimate, non-pretextual business reasons. The other three plaintiffs resigned their employment voluntarily; two of these plaintiffs received $1000 in severance pay. The Restaurant and Hoffman deny that Plaintiff Stagg was terminated for improper reasons, and deny that they have violated California Labor Code § 232.5 as to Plaintiff Stagg or the other three Plaintiffs. Plaintiffs received tips while working at the Restaurant. Although tips were pooled at the Restaurant, management did not share in the proceeds of the tipping pool. 2. Defendants Sri Chinmoy Centre and Sri Chinmoy Society.
Defendant Sri Chinmoy Centre Church (“Sri Chinmoy Centre”) is a non-profit corporation incorporated in 1970 pursuant to the Religious Corporation Law of the State of New York, with its principal place of worship located in Jamaica, New York. The purpose of the Sri Chinmoy Centre is to offer its members a path for achieving oneness with God consonant with the teaching of Sri Chinmoy Kumar Ghose, who died October 11, 2007. Sri Chinmoy Centre is exempt from federal income tax under section 501(c)(3) of the Internal Revenue Code. Sri Chinmoy Centre currently has no employees and to date has only had one employee: Sri Chinmoy Kumar Ghose from 2005 until his passing in 2007.
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Defendant Sri Chinmoy Society, Inc. (“Sri Chinmoy Society”) is a not for profit corporation that was formed in April 2003 under New York’s Not-For-Profit Corporation Law. Sri Chinmoy Society, operating under the assumed name “Vasudeva Server”, ran and operated webhosting and email services as well as Wi-Fi Nodes. After the passing of Sri Chinmoy, all intellectual property of Sri Chinmoy Society was transferred to Sri Chinmoy Centre. Vasudeva Server currently is maintained as a project by Sri Chinmoy Centre and hosts and administers Sri Chinmoy Centre related websites and email services. Sri Chinmoy Society has no current operations and has never had any connection to Plaintiffs herein. Although Plaintiffs have been members of Sri Chinmoy Centre, their membership is independent of any employment relationship with Defendant Ananda Fuara Restaurant (“Ananda Fuara”). Sri Chinmoy Centre is informed and believes that Defendant Garima Hoffman is the sole owner of Ananda Fuara. Neither Sri Chinmoy Centre nor Sri Chinmoy Society have had or
exercised any control over the day to day operations of Ananda Fuara nor have they ever had any ownership interest in Ananda Fuara. Neither Sri Chinmoy Centre nor Sri Chinmoy Society have information regarding the day to day operation of Ananda Fuara, including but not limited to, the hours and working conditions of Plaintiffs. (c) Plaintiffs’ and Defendants Ananda Fuara Restaurant's and Garima Hoffman's
Statement of the Principal Factual Issues in Dispute (1) Whether there was a valid oral, implied and written employment agreement
between Defendants and Plaintiffs. (2) Defendants. (3) Whether Defendants terminated Plaintiffs because Plaintiffs disclosed Whether Defendants made promises to Plaintiffs about employment by
information about their working conditions. (4) Whether Plaintiffs were paid minimum wages for all hours they worked and
the number of hours that they worked.
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(5)
Whether Plaintiffs worked more than eight (8) hours in a single workday or
forty (40) hours in a single workweek and/or worked hours on the seventh (7th) consecutive day of the workweek, and if so, how many hours they worked. (6) Whether there was a tip pooling agreement to distribute tips collected from
defendants’ customers to defendants’ restaurant employees. (7) (8) (9) Whether Plaintiffs missed rest breaks and if so, how many. Whether Plaintiffs failed to receive wage statements. Whether any failure to pay Plaintiffs all wages due at the time of their
termination from employment was willful. (10) (d) The amount of Plaintiffs’ damages.
Defendants’ Sri Chinmoy Centre's and Sri Chinmoy Society's Statement of the
Principal Factual Issues In Dispute (1) Whether Sri Chinmoy Centre and Sri Chinmoy Society had any employment
relationship with Plaintiffs.. (2) Whether Sri Chinmoy Centre and Sri Chinmoy Society exercised any control
over the day to day operations of Ananda Fuara Restaurant, including but not limited to wages, hours and working conditions.. (3) Whether Sri Chinmoy Centre and Sri Chinmoy Society took any adverse
employment action with regard to Plaintiffs' employment at Ananda Fuara Restaurant. 3. LEGAL ISSUES (a) Plaintiffs’ Statement of Legal Issues (1) Whether Defendants were joint employers and therefore have joint liability to
Plaintiffs under the standards set forth in Martinez v. Combs (2010) 49 Cal.4th 35 and by the Department of Labor, 29 C.F.R. § 791 et seq. (2) Whether Defendants breached the terms of the oral, implied and written
employment agreement between Defendants and Plaintiffs. (3) Whether Plaintiffs reasonably relied on the promises made to them by
Defendants such that Defendants are estopped from denying those promises.
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(4)
Whether Defendants terminated Plaintiffs in violation of Labor Code § 232.5
because Plaintiffs disclosed information about their working conditions. (5) Whether Defendants’ payment of wages to Plaintiffs for hours worked
violated Labor Code §§ 201, 203, 351, 226, 226.7, 510, 1194, 1194(a), 1194.2, 1197-1199, 2698 et seq.; FLSA §§ 206, 207; San Francisco Minimum Wage Ordinance, Chap. 12R, San Francisco Administrative Code; and Wage Order 5-2001, Cal. Code Regs., Tit. 8, § 11020, among other statutes and regulations. (6) Whether Plaintiffs are entitled to statutory penalties under the Labor Code, the
FLSA and the San Francisco Minimum Wage Order. (7) (8) 17200 et seq. (9) Whether Defendants converted Plaintiffs’ lawful minimum wages, overtime Whether Plaintiffs are entitled to penalties under Labor Code § 2698 et seq. Whether Defendants violated California Business and Professions Code §
wages, tips and compensation as part of an intentional and deliberate scheme to maximize profits at the expense of Plaintiffs. (b) Defendants’ Statement of Legal Issues (1) Defendants Ananda Fuara Restaurant and Garima Hoffman (a) Whether Plaintiffs' Complaint states a claim upon which relief may be
granted as to the Restaurant or Hoffmann. (b) Whether, and if so to what extent, Plaintiffs are barred from recovery,
or whether any recovery by Plaintiffs must be reduced by their failure to mitigate any alleged damages. (c) Whether, and if so to what extent, Plaintiffs' recovery is barred by
applicable statutes of limitations and/or laches. (d) Whether, and if so to what extent, Plaintiffs' claims premised on
actions taken by Defendants Restaurant and Hoffmann with respect to matters of religion are protected by the First Amendment to the US Constitution and equivalent state law protections.
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(e)
Whether, and if so to what extent, Plaintiffs' claims, recovery, and/or
damages are barred under any or all of the affirmative defenses asserted by Defendants Ananda Fuara and Hoffmann in their answer to the Complaint. (f) Whether Plaintiffs’ Complaint fails to state facts sufficient to form a
basis for punitive damages, and whether punitive damages are recoverable under the California and U.S. Constitutions. (2) Defendants Sri Chinmoy Centre and Sri Chinmoy Society (a) joint-employers of Plaintiffs. (b) Whether any action undertaken by the Board of Trustees of Sri Whether Sri Chinmoy Centre and Sri Chinmoy Society are or were
Chinmoy Centre in furtherance of its spiritual mission can be considered evidence of an employment relationship with its members. (c) Whether the First Amendment protects Sri Chinmoy Centre from
liability as a joint-employer of Plaintiffs for any action undertaken in furtherance of it spiritual mission. (d) Whether any alleged statement attributed to Sri Chinmoy Kumar
Ghose in furtherance of his spiritual mission are binding on Sri Chinmoy Centre in connection with an analysis of Sri Chinmoy Centre’s status as a joint-employer of Plaintiffs. (e) The legal significance of any action or inaction taken by defendant
Garima Hoffman in her role as owner of defendant Ananda Fuara Restaurant and her status as a member of the Board of Trustees of Sri Chinmoy Centre. (f) The legal significance of any action or inaction taken by defendant
Garima Hoffman in her role as a member and trustee of Sri Chinmoy Centre and her status as owner of defendant Ananda Fuara Restaurant. 4. MOTIONS The parties anticipate the filing of the following motions: (1) evidence obtained.
JOINT CASE MANAGEMENT STATEMENT AND [PROPOSED] ORDER
Plaintiffs may file a Motion for Partial Summary Judgment depending on the
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(2)
Defendants Sri Chinmoy Society, Inc. and Sri Chinmoy Centre anticipate
filing a Motion for Summary Judgment. (3) Defendants Ananda Fuara Restaurant and Garima Hoffman anticipate filing a
Motion for Summary Judgment and/or Partial Summary Judgment. The parties stipulate to extend the deadline set forth in Civil Local Rule 7-2(a) to provide that any party filing a Motion for Partial Summary Judgment or Motion for Summary Judgment will file the motion at least 42 days before the hearing date. 5. AMENDMENT OF PLEADINGS The parties do not presently anticipate the need to amend the pleadings. Prior to the
preparation of this Joint Case Management Conference Statement, Plaintiffs amended the Complaint to add a cause of action under Labor Code § 2699 et seq. after administratively exhausting with the Labor Workforce and Development Agency. Plaintiffs also dismissed without prejudice defendant Garima, Inc. 6. EVIDENCE PRESERVATION The parties represent that reasonable steps have been taken to preserve evidence relevant to the issues in this case, including the taking of steps to prevent the loss or destruction of potentially relevant evidence. At this early stage, the parties do not anticipate discovery issues regarding electronic documents and/or protected material. The parties agree to meet and confer as such discovery issues may arise. 7. DISCLOSURES The parties have agreed to serve their respective initial disclosures by email, personal delivery or overnight delivery by October 29, 2010. 8. DISCOVERY The parties have not taken any discovery to date. In addition to the exchange of initial disclosures, the parties anticipate completing written discovery, document productions and depositions. Discovery is anticipated on the following subjects: (1) Whether Defendants Sri Chinmoy Society, Inc. and Sri Chinmoy Centre were joint employers with Defendants Ananda Fuara
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Restaurant and Garima Hoffman; (2) the terms under which Plaintiffs were employed by Defendants; (3) whether Defendants made promises to Plaintiffs about employment by Defendants; (4) the reasons for Defendants’ termination of Plaintiffs’ employment; (5) the number of hours Plaintiffs worked for Defendants and the amount of compensation they received for that work; (6) the amount of payroll taxes withheld and paid by Defendants on Plaintiffs’ behalf; (7) the amount of tips collected each day by Defendants and distributed to their employees; (8) the amount of tips paid by Defendants to Plaintiffs; (9) whether Plaintiffs missed rest breaks and if so, how many; (10) whether Plaintiffs failed to receive wage statements; (11) whether any failure to pay Plaintiffs all wages due at the time of their termination from employment was willful; (12) the allegations set forth in Plaintiffs’ Complaint and First Amended Complaint and Defendants’ defenses; and (13) liability and damages. All non expert discovery should be completed by July 8, 2011. All expert discovery should be completed by August 26, 2011. The parties agree that discovery should not be conducted in phases and should not be limited or focused upon any particular issue. The parties agree that no changes should be made in the limitations on discovery imposed by the FRCP, with the exception of FRCP 30. The parties stipulate that the provisions of FRCP 30(d)(2), which limit the length of a deposition to one day of seven hours, will not apply with respect to the depositions of Plaintiffs Ashanka Stagg, Damian Sequoia, Lucian Balmer, Sundari Michaelian and Defendant Garima Hoffman and Ashrita Furman, Treasurer and a Trustee of Sri Chinmoy Centre. Instead, each Plaintiff will be deposed for two days, seven hours each day, over the course of two consecutive business days, to enable each of Defendants’ lawyers to spend one day of seven hours deposing each Plaintiff. Plaintiffs will depose Garima Hoffman and Ashrita Furman for two days, seven hours each day, over the course of two consecutive business days. The parties agree to participate in initial written discovery prior to taking depositions. 9. CLASS ACTION This is not a class action. // //
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10.
RELATED CASES There are no related cases or proceedings pending before another Judge of this Court or
before another Court or administrative body. 11. RELIEF Plaintiffs: Without the benefit of discovery or wage statements, plaintiffs are currently preparing preliminary calculations of the unpaid wages, misappropriated tips, and lost earnings they claim for the period prior to their terminations from employment. These calculations will be ready in time to be included in plaintiffs' Initial Disclosures. The category of damages which plaintiffs will be seeking include the following: 1. Damages for failure to pay minimum wages in violation of Cal. Labor Code §§ 1194,
1194.2, 1197, the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 206, the San Francisco Minimum Wage Ordinance, Chap. 12 R, San Francisco Administrative Code and Wage Order 5-2001, Cal. Code Regs, Tit. 8, § 11020; 2. Damages for failure to pay overtime wages in violation of Cal. Labor Code §§ 510,
1194(a), 1198, 1199, FLSA § 207, the San Francisco Minimum Wage Ordinance, Chap. 12 R, San Francisco Administrative Code and Wage Order 5-2001, Cal. Code Regs, Tit. 8, § 11020; 3. One (1) hour of premium pay for each workday in which a rest period was not
provided as required by law in violation of Cal. Lab. Code § 226.7; 4. Liquidated damages available under the California Labor Code, the FLSA and the
San Francisco Minimum Wage Ordinance; 5. 6. All applicable statutory penalties available under the California Labor Code; All applicable civil penalties for violations as enumerated under the California Labor
Code in Labor Code § 2698 et seq.; 7. Restitutionary disgorgement of wages and tips and injunctive relief for violation of
the Unfair Competition Law, Cal. Bus. & Prof. Code § 17200, et seq.; 8. 9. Future wage loss, emotional distress damages and punitive damages; Pre-judgment interest accruing at the maximum amount allowed by law; 11.
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10. 12.
Attorneys’ fees and cost.
SETTLEMENT AND ADR The parties agree to participate in mediation after initial discovery has taken place.
13.
CONSENT TO MAGISTRATE JUDGE FOR ALL PURPOSES Defendants are not willing to consent to have a Magistrate Judge conduct all further
proceedings in this matter and have so indicated by filing a Declination to Proceed Before Magistrate Judge with the Court. 14. OTHER REFERENCES The parties agree that this case is not suitable for reference to binding arbitration or any other reference. 15. NARROWING OF ISSUES The parties believe that a Motion for Partial Summary Judgment may narrow issues. 16. EXPEDITED SCHEDULE The parties do not believe that this is the type of case that can be handled on an expedited basis with streamlined procedures. 17. SCHEDULING The parties submit the following schedule to this Court in relation to discovery, motions, designation of experts, and pretrial conference and trial: Amendment of Pleadings Cutoff (Plaintiffs’ Proposal): Amendment of Pleadings Cutoff (Defendants’ Proposal): Non Expert Discovery Cutoff: Expert Disclosures (Initial): Expert Disclosures (Rebuttal): Dispositive Motion Hearing Cutoff: Expert Discovery Cut Off: Final Pre trial Conference: Trial: //
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June 1, 2011 January 7, 2011 July 8, 2011 July 18, 2011 August 1, 2011 August 5, 2011 August 26, 2011 September 19, 2011 September 26, 2011
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18.
TRIAL Plaintiffs have requested a jury trial. The expected length of trial is 10 court days.
19.
DISCLOSURE OF NON PARTY INTERESTED ENTITIES OR PERSONS All parties have filed the “Certification of Interested Entities or Persons” required by Civil
Local Rule 3-16, and have indicated that there are no non-party interests to report. 20. OTHER MATTERS The parties are amenable to discussing with one another, and with the Court, any other matters that may facilitate the just, speedy, and inexpensive disposition of this matter. Dated: October 15, 2010
________________/s/_____________________ Moira C. McQuaid LAW OFFICES OF MOIRA C. MCQUAID Attorneys for Plaintiffs ASHANKA STAGG, DAMIAN SEQUOIA, LUCIAN BALMER and SUNDARI MICHAELIAN Dated: October 15, 2010
________________/s/____________________ James Diamond GOLDFARB LIPMAN Attorneys for Defendants ANANDA FUARA RESTAURANT, GARIMA, INC. AND GARIMA HOFFMAN Dated: October 15, 2010
_______________/s/_____________________ Michael F. McCabe LITTLER MENDELSON A Professional Corporation Attorneys for Defendants SRI CHINMOY SOCIETY, INC. and SRI CHINMOY CENTRE
Firmwide:98090855.1 065769.1001
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ATTESTATION OF E-FILED SIGNATURE
I, Michael F. McCabe, am the ECF User whose ID and password are being used to file this Joint Case Management Statement and [Proposed] Order. In compliance with General Order 45, X.B., I hereby attest that Moira McQuaid, Esq., and James Diamond have read and approved this Joint Case Management Statement and [Proposed] Order and consent to its filing in this action.
DATED: October 15, 2010
______________/s/_____________________ Michael F. McCabe LITTLER MENDELSON A Professional Corporation
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MOIRA C. McQUAID, Bar No. 154232 LAW OFFICES OF MOIRA C. MCQUAID 830 Burlway Road Burlingame, CA 94010 Telephone: 650.359.2545 Facsimile: 650.359.2533 Attorneys for Plaintiffs ASHANKA STAGG, DAMIAN SEQUOIA, LUCIAN BALMER, SUNDARI MICHAELIAN GARRY G. MATHIASON, Bar No. 051119 MICHAEL F. MCCABE, Bar No. 111151 APRIL N. LOVE, Bar No. 255527 LITTLER MENDELSON A Professional Corporation 650 California Street, 20th Floor San Francisco, CA 94108.2693 Telephone: 415.433.1940 Facsimile: 415.399.8490 Email: [email protected] [email protected] Attorneys for Defendants SRI CHINMOY SOCIETY, INC. and SRI CHINMOY CENTRE JAMES T. DIAMOND, JR., Bar No. 131525 XOCHITL CARRION, Bar No. 252733 GOLDFARB & LIPMAN 1300 Clay Street, Ninth Floor City Center Plaza Oakland, CA 94612 Telephone: 510.836.6336 Facsimile: 510.836.1035 Email: [email protected] Attorneys for Defendants ANANDA FUARA RESTAURANT, GARIMA, INC. and GARIMA HOFFMAN
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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA ASHANKA STAGG, DAMIAN SEQUOIA, LUCIAN BALMER and SUNDARI MICHAELIAN, Plaintiffs, v. ANANDA FUARA RESTAURANT; an entity, form unknown; GARIMA, INC., a corporation; GARIMA HOFFMANN, an individual; SRI CHINMOY SOCIETY, INC., a corporation; SRI CHINMOY CENTRE, an entity, form unknown; and DOES 1-100, inclusive, Defendants. Case No. CV 10-02768 JSW JOINT CASE MANAGEMENT STATEMENT AND [PROPOSED] ORDER Date: Time: Courtroom: Judge: October 22, 2010 1:30 pm 11, 19th Floor Hon. Jeffrey S. White
Pursuant to Rule 26(f) of the Federal Rules of Civil Procedure and in accordance with the Standing Order for All Judges in the Northern District of California, the parties in this matter hereby submit this Joint Case Management Statement. 1. JURISDICTION AND SERVICE The basis for the Court’s subject matter jurisdiction over Plaintiffs’ claims is federal question jurisdiction (28 U.S.C. § 1331 and 29 U.S.C. § 216(b) of the Fair Labor Standards Act (“FLSA”)). There are no parties that remain to be served except to the extent that Plaintiffs identify DOE defendants. 2. FACTS (a) Plaintiffs’ Chronology of the Facts Plaintiffs Ashanka Stagg, Damian Sequoia, Lucian Balmer and Sundari Michaelian worked a collective 62 years at Defendants’ vegetarian Ananda Fuara Restaurant in San Francisco. Two of the four Plaintiffs are over 60, one is in her late 50s and one is in his 20s. Plaintiffs worked in the restaurant in various capacities either as servers, bakers, dish washers, or preparers of food.
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Besides working at the Ananda Fuara Restaurant, Plaintiffs also were followers of the teachings of Chinmoy Kumar Ghose and members of a spiritual group called the Sri Chinmoy Centre, a named defendant in this action. Each of the Plaintiffs was assigned by Ghose to work at his enterprise business, the Ananda Fuara Restaurant. The Plaintiffs were promised by Defendants that they would have a job at the restaurant as long as they wanted to work. While working for Defendants, Plaintiffs also observed Defendants’ practice of continuing to pay former employees when they became too old or infirm to continue working. Plaintiffs had the expectation that Defendants would likewise continue to pay them when they became too old or infirm to continue working. In agreeing to work for Defendants under these conditions, each of the Plaintiffs gave up opportunities to pursue other gainful employment. During their 62 collective years of employment at the Ananda Fuara Restaurant, Plaintiffs each received from Defendants a fixed weekly stipend that never amounted to more than $150.00 per week. The stipends bore no relationship to the actual number of hours each Plaintiff worked. As a result, Plaintiffs were not paid minimum wages or overtime wages in conformity with the rates set forth in the Fair Labor Standards Act (“FLSA”), the California Labor Code, the San Francisco Minimum Wage Ordinance or Wage Order 5-2001. The Plaintiffs also were required by Defendants to relinquish the tips they collected from the customers of the restaurant and give the tip money to Defendants. Between November 6, 2009 and January 23, 2010, each of the Plaintiffs was terminated from employment by Defendants because the Plaintiffs discussed allegations that appeared on the Internet that Ghose had engaged in inappropriate sexual conduct with several female members of the Sri Chinmoy Centre. Some of the allegations of inappropriate sexual conduct against Ghose came from a female former Ananda Fuara Restaurant employee, who was known to the Plaintiffs. Plaintiffs allege that their termination under these circumstances violated Labor Code § 232.5, which protects employees who disclose information about the conditions at their work. Since their termination, the Plaintiffs have not succeeded in obtaining full-time alternate employment and continue to accrue damages. //
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(b)
Defendants’ Chronology of the Facts 1. Defendants Ananda Fuara Restaurant and Garima Hoffman.
Ms. Hoffmann owns and operates the Ananda Fuara Restaurant (the "Restaurant") in San Francisco, and operates the Restaurant as a dba. As addressed in the Restaurant's web site, the Restaurant is a Sri Chinmoy divine enterprise that specializes in vegetarian and vegan cuisine. The Restaurant is neither funded by nor operated by the Sri Chinmoy church. Plaintiffs were for the most part long-term employees at the Restaurant. None of the employees at the Restaurant had an oral or written contract of employment. Plaintiffs were
compensated in cash payments, food, travel reimbursements, other expense reimbursements, and payment of some medical expenses. They also shared in the tip pool. Plaintiff Stagg's employment was terminated; although there was no contract for employment, her employment was terminated with good cause, for legitimate, non-pretextual business reasons. The other three plaintiffs resigned their employment voluntarily; two of these plaintiffs received $1000 in severance pay. The Restaurant and Hoffman deny that Plaintiff Stagg was terminated for improper reasons, and deny that they have violated California Labor Code § 232.5 as to Plaintiff Stagg or the other three Plaintiffs. Plaintiffs received tips while working at the Restaurant. Although tips were pooled at the Restaurant, management did not share in the proceeds of the tipping pool. 2. Defendants Sri Chinmoy Centre and Sri Chinmoy Society.
Defendant Sri Chinmoy Centre Church (“Sri Chinmoy Centre”) is a non-profit corporation incorporated in 1970 pursuant to the Religious Corporation Law of the State of New York, with its principal place of worship located in Jamaica, New York. The purpose of the Sri Chinmoy Centre is to offer its members a path for achieving oneness with God consonant with the teaching of Sri Chinmoy Kumar Ghose, who died October 11, 2007. Sri Chinmoy Centre is exempt from federal income tax under section 501(c)(3) of the Internal Revenue Code. Sri Chinmoy Centre currently has no employees and to date has only had one employee: Sri Chinmoy Kumar Ghose from 2005 until his passing in 2007.
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Defendant Sri Chinmoy Society, Inc. (“Sri Chinmoy Society”) is a not for profit corporation that was formed in April 2003 under New York’s Not-For-Profit Corporation Law. Sri Chinmoy Society, operating under the assumed name “Vasudeva Server”, ran and operated webhosting and email services as well as Wi-Fi Nodes. After the passing of Sri Chinmoy, all intellectual property of Sri Chinmoy Society was transferred to Sri Chinmoy Centre. Vasudeva Server currently is maintained as a project by Sri Chinmoy Centre and hosts and administers Sri Chinmoy Centre related websites and email services. Sri Chinmoy Society has no current operations and has never had any connection to Plaintiffs herein. Although Plaintiffs have been members of Sri Chinmoy Centre, their membership is independent of any employment relationship with Defendant Ananda Fuara Restaurant (“Ananda Fuara”). Sri Chinmoy Centre is informed and believes that Defendant Garima Hoffman is the sole owner of Ananda Fuara. Neither Sri Chinmoy Centre nor Sri Chinmoy Society have had or
exercised any control over the day to day operations of Ananda Fuara nor have they ever had any ownership interest in Ananda Fuara. Neither Sri Chinmoy Centre nor Sri Chinmoy Society have information regarding the day to day operation of Ananda Fuara, including but not limited to, the hours and working conditions of Plaintiffs. (c) Plaintiffs’ and Defendants Ananda Fuara Restaurant's and Garima Hoffman's
Statement of the Principal Factual Issues in Dispute (1) Whether there was a valid oral, implied and written employment agreement
between Defendants and Plaintiffs. (2) Defendants. (3) Whether Defendants terminated Plaintiffs because Plaintiffs disclosed Whether Defendants made promises to Plaintiffs about employment by
information about their working conditions. (4) Whether Plaintiffs were paid minimum wages for all hours they worked and
the number of hours that they worked.
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(5)
Whether Plaintiffs worked more than eight (8) hours in a single workday or
forty (40) hours in a single workweek and/or worked hours on the seventh (7th) consecutive day of the workweek, and if so, how many hours they worked. (6) Whether there was a tip pooling agreement to distribute tips collected from
defendants’ customers to defendants’ restaurant employees. (7) (8) (9) Whether Plaintiffs missed rest breaks and if so, how many. Whether Plaintiffs failed to receive wage statements. Whether any failure to pay Plaintiffs all wages due at the time of their
termination from employment was willful. (10) (d) The amount of Plaintiffs’ damages.
Defendants’ Sri Chinmoy Centre's and Sri Chinmoy Society's Statement of the
Principal Factual Issues In Dispute (1) Whether Sri Chinmoy Centre and Sri Chinmoy Society had any employment
relationship with Plaintiffs.. (2) Whether Sri Chinmoy Centre and Sri Chinmoy Society exercised any control
over the day to day operations of Ananda Fuara Restaurant, including but not limited to wages, hours and working conditions.. (3) Whether Sri Chinmoy Centre and Sri Chinmoy Society took any adverse
employment action with regard to Plaintiffs' employment at Ananda Fuara Restaurant. 3. LEGAL ISSUES (a) Plaintiffs’ Statement of Legal Issues (1) Whether Defendants were joint employers and therefore have joint liability to
Plaintiffs under the standards set forth in Martinez v. Combs (2010) 49 Cal.4th 35 and by the Department of Labor, 29 C.F.R. § 791 et seq. (2) Whether Defendants breached the terms of the oral, implied and written
employment agreement between Defendants and Plaintiffs. (3) Whether Plaintiffs reasonably relied on the promises made to them by
Defendants such that Defendants are estopped from denying those promises.
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(4)
Whether Defendants terminated Plaintiffs in violation of Labor Code § 232.5
because Plaintiffs disclosed information about their working conditions. (5) Whether Defendants’ payment of wages to Plaintiffs for hours worked
violated Labor Code §§ 201, 203, 351, 226, 226.7, 510, 1194, 1194(a), 1194.2, 1197-1199, 2698 et seq.; FLSA §§ 206, 207; San Francisco Minimum Wage Ordinance, Chap. 12R, San Francisco Administrative Code; and Wage Order 5-2001, Cal. Code Regs., Tit. 8, § 11020, among other statutes and regulations. (6) Whether Plaintiffs are entitled to statutory penalties under the Labor Code, the
FLSA and the San Francisco Minimum Wage Order. (7) (8) 17200 et seq. (9) Whether Defendants converted Plaintiffs’ lawful minimum wages, overtime Whether Plaintiffs are entitled to penalties under Labor Code § 2698 et seq. Whether Defendants violated California Business and Professions Code §
wages, tips and compensation as part of an intentional and deliberate scheme to maximize profits at the expense of Plaintiffs. (b) Defendants’ Statement of Legal Issues (1) Defendants Ananda Fuara Restaurant and Garima Hoffman (a) Whether Plaintiffs' Complaint states a claim upon which relief may be
granted as to the Restaurant or Hoffmann. (b) Whether, and if so to what extent, Plaintiffs are barred from recovery,
or whether any recovery by Plaintiffs must be reduced by their failure to mitigate any alleged damages. (c) Whether, and if so to what extent, Plaintiffs' recovery is barred by
applicable statutes of limitations and/or laches. (d) Whether, and if so to what extent, Plaintiffs' claims premised on
actions taken by Defendants Restaurant and Hoffmann with respect to matters of religion are protected by the First Amendment to the US Constitution and equivalent state law protections.
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(e)
Whether, and if so to what extent, Plaintiffs' claims, recovery, and/or
damages are barred under any or all of the affirmative defenses asserted by Defendants Ananda Fuara and Hoffmann in their answer to the Complaint. (f) Whether Plaintiffs’ Complaint fails to state facts sufficient to form a
basis for punitive damages, and whether punitive damages are recoverable under the California and U.S. Constitutions. (2) Defendants Sri Chinmoy Centre and Sri Chinmoy Society (a) joint-employers of Plaintiffs. (b) Whether any action undertaken by the Board of Trustees of Sri Whether Sri Chinmoy Centre and Sri Chinmoy Society are or were
Chinmoy Centre in furtherance of its spiritual mission can be considered evidence of an employment relationship with its members. (c) Whether the First Amendment protects Sri Chinmoy Centre from
liability as a joint-employer of Plaintiffs for any action undertaken in furtherance of it spiritual mission. (d) Whether any alleged statement attributed to Sri Chinmoy Kumar
Ghose in furtherance of his spiritual mission are binding on Sri Chinmoy Centre in connection with an analysis of Sri Chinmoy Centre’s status as a joint-employer of Plaintiffs. (e) The legal significance of any action or inaction taken by defendant
Garima Hoffman in her role as owner of defendant Ananda Fuara Restaurant and her status as a member of the Board of Trustees of Sri Chinmoy Centre. (f) The legal significance of any action or inaction taken by defendant
Garima Hoffman in her role as a member and trustee of Sri Chinmoy Centre and her status as owner of defendant Ananda Fuara Restaurant. 4. MOTIONS The parties anticipate the filing of the following motions: (1) evidence obtained.
JOINT CASE MANAGEMENT STATEMENT AND [PROPOSED] ORDER
Plaintiffs may file a Motion for Partial Summary Judgment depending on the
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(2)
Defendants Sri Chinmoy Society, Inc. and Sri Chinmoy Centre anticipate
filing a Motion for Summary Judgment. (3) Defendants Ananda Fuara Restaurant and Garima Hoffman anticipate filing a
Motion for Summary Judgment and/or Partial Summary Judgment. The parties stipulate to extend the deadline set forth in Civil Local Rule 7-2(a) to provide that any party filing a Motion for Partial Summary Judgment or Motion for Summary Judgment will file the motion at least 42 days before the hearing date. 5. AMENDMENT OF PLEADINGS The parties do not presently anticipate the need to amend the pleadings. Prior to the
preparation of this Joint Case Management Conference Statement, Plaintiffs amended the Complaint to add a cause of action under Labor Code § 2699 et seq. after administratively exhausting with the Labor Workforce and Development Agency. Plaintiffs also dismissed without prejudice defendant Garima, Inc. 6. EVIDENCE PRESERVATION The parties represent that reasonable steps have been taken to preserve evidence relevant to the issues in this case, including the taking of steps to prevent the loss or destruction of potentially relevant evidence. At this early stage, the parties do not anticipate discovery issues regarding electronic documents and/or protected material. The parties agree to meet and confer as such discovery issues may arise. 7. DISCLOSURES The parties have agreed to serve their respective initial disclosures by email, personal delivery or overnight delivery by October 29, 2010. 8. DISCOVERY The parties have not taken any discovery to date. In addition to the exchange of initial disclosures, the parties anticipate completing written discovery, document productions and depositions. Discovery is anticipated on the following subjects: (1) Whether Defendants Sri Chinmoy Society, Inc. and Sri Chinmoy Centre were joint employers with Defendants Ananda Fuara
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Restaurant and Garima Hoffman; (2) the terms under which Plaintiffs were employed by Defendants; (3) whether Defendants made promises to Plaintiffs about employment by Defendants; (4) the reasons for Defendants’ termination of Plaintiffs’ employment; (5) the number of hours Plaintiffs worked for Defendants and the amount of compensation they received for that work; (6) the amount of payroll taxes withheld and paid by Defendants on Plaintiffs’ behalf; (7) the amount of tips collected each day by Defendants and distributed to their employees; (8) the amount of tips paid by Defendants to Plaintiffs; (9) whether Plaintiffs missed rest breaks and if so, how many; (10) whether Plaintiffs failed to receive wage statements; (11) whether any failure to pay Plaintiffs all wages due at the time of their termination from employment was willful; (12) the allegations set forth in Plaintiffs’ Complaint and First Amended Complaint and Defendants’ defenses; and (13) liability and damages. All non expert discovery should be completed by July 8, 2011. All expert discovery should be completed by August 26, 2011. The parties agree that discovery should not be conducted in phases and should not be limited or focused upon any particular issue. The parties agree that no changes should be made in the limitations on discovery imposed by the FRCP, with the exception of FRCP 30. The parties stipulate that the provisions of FRCP 30(d)(2), which limit the length of a deposition to one day of seven hours, will not apply with respect to the depositions of Plaintiffs Ashanka Stagg, Damian Sequoia, Lucian Balmer, Sundari Michaelian and Defendant Garima Hoffman and Ashrita Furman, Treasurer and a Trustee of Sri Chinmoy Centre. Instead, each Plaintiff will be deposed for two days, seven hours each day, over the course of two consecutive business days, to enable each of Defendants’ lawyers to spend one day of seven hours deposing each Plaintiff. Plaintiffs will depose Garima Hoffman and Ashrita Furman for two days, seven hours each day, over the course of two consecutive business days. The parties agree to participate in initial written discovery prior to taking depositions. 9. CLASS ACTION This is not a class action. // //
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10.
RELATED CASES There are no related cases or proceedings pending before another Judge of this Court or
before another Court or administrative body. 11. RELIEF Plaintiffs: Without the benefit of discovery or wage statements, plaintiffs are currently preparing preliminary calculations of the unpaid wages, misappropriated tips, and lost earnings they claim for the period prior to their terminations from employment. These calculations will be ready in time to be included in plaintiffs' Initial Disclosures. The category of damages which plaintiffs will be seeking include the following: 1. Damages for failure to pay minimum wages in violation of Cal. Labor Code §§ 1194,
1194.2, 1197, the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 206, the San Francisco Minimum Wage Ordinance, Chap. 12 R, San Francisco Administrative Code and Wage Order 5-2001, Cal. Code Regs, Tit. 8, § 11020; 2. Damages for failure to pay overtime wages in violation of Cal. Labor Code §§ 510,
1194(a), 1198, 1199, FLSA § 207, the San Francisco Minimum Wage Ordinance, Chap. 12 R, San Francisco Administrative Code and Wage Order 5-2001, Cal. Code Regs, Tit. 8, § 11020; 3. One (1) hour of premium pay for each workday in which a rest period was not
provided as required by law in violation of Cal. Lab. Code § 226.7; 4. Liquidated damages available under the California Labor Code, the FLSA and the
San Francisco Minimum Wage Ordinance; 5. 6. All applicable statutory penalties available under the California Labor Code; All applicable civil penalties for violations as enumerated under the California Labor
Code in Labor Code § 2698 et seq.; 7. Restitutionary disgorgement of wages and tips and injunctive relief for violation of
the Unfair Competition Law, Cal. Bus. & Prof. Code § 17200, et seq.; 8. 9. Future wage loss, emotional distress damages and punitive damages; Pre-judgment interest accruing at the maximum amount allowed by law; 11.
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10. 12.
Attorneys’ fees and cost.
SETTLEMENT AND ADR The parties agree to participate in mediation after initial discovery has taken place.
13.
CONSENT TO MAGISTRATE JUDGE FOR ALL PURPOSES Defendants are not willing to consent to have a Magistrate Judge conduct all further
proceedings in this matter and have so indicated by filing a Declination to Proceed Before Magistrate Judge with the Court. 14. OTHER REFERENCES The parties agree that this case is not suitable for reference to binding arbitration or any other reference. 15. NARROWING OF ISSUES The parties believe that a Motion for Partial Summary Judgment may narrow issues. 16. EXPEDITED SCHEDULE The parties do not believe that this is the type of case that can be handled on an expedited basis with streamlined procedures. 17. SCHEDULING The parties submit the following schedule to this Court in relation to discovery, motions, designation of experts, and pretrial conference and trial: Amendment of Pleadings Cutoff (Plaintiffs’ Proposal): Amendment of Pleadings Cutoff (Defendants’ Proposal): Non Expert Discovery Cutoff: Expert Disclosures (Initial): Expert Disclosures (Rebuttal): Dispositive Motion Hearing Cutoff: Expert Discovery Cut Off: Final Pre trial Conference: Trial: //
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June 1, 2011 January 7, 2011 July 8, 2011 July 18, 2011 August 1, 2011 August 5, 2011 August 26, 2011 September 19, 2011 September 26, 2011
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18.
TRIAL Plaintiffs have requested a jury trial. The expected length of trial is 10 court days.
19.
DISCLOSURE OF NON PARTY INTERESTED ENTITIES OR PERSONS All parties have filed the “Certification of Interested Entities or Persons” required by Civil
Local Rule 3-16, and have indicated that there are no non-party interests to report. 20. OTHER MATTERS The parties are amenable to discussing with one another, and with the Court, any other matters that may facilitate the just, speedy, and inexpensive disposition of this matter. Dated: October 15, 2010
________________/s/_____________________ Moira C. McQuaid LAW OFFICES OF MOIRA C. MCQUAID Attorneys for Plaintiffs ASHANKA STAGG, DAMIAN SEQUOIA, LUCIAN BALMER and SUNDARI MICHAELIAN Dated: October 15, 2010
________________/s/____________________ James Diamond GOLDFARB LIPMAN Attorneys for Defendants ANANDA FUARA RESTAURANT, GARIMA, INC. AND GARIMA HOFFMAN Dated: October 15, 2010
_______________/s/_____________________ Michael F. McCabe LITTLER MENDELSON A Professional Corporation Attorneys for Defendants SRI CHINMOY SOCIETY, INC. and SRI CHINMOY CENTRE
Firmwide:98090855.1 065769.1001
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ATTESTATION OF E-FILED SIGNATURE
I, Michael F. McCabe, am the ECF User whose ID and password are being used to file this Joint Case Management Statement and [Proposed] Order. In compliance with General Order 45, X.B., I hereby attest that Moira McQuaid, Esq., and James Diamond have read and approved this Joint Case Management Statement and [Proposed] Order and consent to its filing in this action.
DATED: October 15, 2010
______________/s/_____________________ Michael F. McCabe LITTLER MENDELSON A Professional Corporation
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