Metropolitan News-Enterprise

 

Thursday, June 10, 2021

 

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Putative Class Action Reinstated Over Dissent That Says Two Stabs at Pleading Are Enough

Majority of Ninth Circuit Panel Says Gist of Class Definition Was Discernible, Repleading Must Be Allowed

 

By a MetNews Staff Writer

 

The Ninth U.S. Circuit Court of Appeals decided yesterday that a man whose definition of a proposed class was so broad as to prompt a District Court judge to dismiss the class allegations with prejudice must be given another chance to plead, with a dissenter insisting that the plaintiff’s two opportunities were sufficient.

All members of the three-judge panel were in agreement that District Court Judge Michael W. Fitzgerald of the Central District of California erred in finding that plaintiff Rick Parsittie had failed to state individual claims against Schneider Logistics Transportation, Inc. and related entities based on alleged wage-and-hour violations. He contended that by virtue of having to wait in line at a security checkpoint for five to 15 minutes each day, he was uncompensated for over-time and deterred from going off-site for lunch.

Other rulings were affirmed by the panel.

Parsittie filed his putative class action in 2018 in Santa Clara Superior Court but Schneider Logistics, a trucking company headquartered in Wisconsin, removed it to federal court based on diversity. The plaintiff filed a first amended complaint against his former employer, then a second.

Fitzgerald dismissed the second amended complaint with leave to amend, but did not permit further pleading after dismissing the third amended complaint, finding that none of the deficiencies he previously pinpointed had been remedied.

Fitzgerald’s Ruling

Parsittie defined the class as “Defendants and/or any staffing agencies in hourly or non-exempt positions in California during the Relevant Time Period.” The judge ruled:

“Plaintiff’s class definition is still overly-broad and too vague, as it includes any person who has worked for any staffing agency in California.”

He pointed out that the class definition “is not limited to staffing agencies used by Defendants or those that employed Plaintiff,” adding:

“Plaintiff does not even allege he ever worked for a staffing agency.”

Ninth Circuit’s Reversal

Voting to reinstate the class allegations were Circuit Judge Marsha S. Berzon and Kathleen Cardone, a District Court judge for the Western District of Texas, sitting by designation. They said in a memorandum opinion:

“[A]lthough the language could have been more precise, the complaint, fairly read, alleges that Parsittie’s proposed class definition includes employees who are employed by staffing agencies acting as joint employers with the defendant. Furthermore, Parsittie’s single failure to cure defects in the class definition does not constitute ‘repeated failure to cure deficiencies.’ ”

The judges continued:

“Given the plausible reading of the complaint, the failure to find futility, and the procedural history, Parsittie should at least have been granted leave to amend to allege the class definition more precisely.”

Dissenting from that portion of the majority’s opinion, Senior Circuit Judge Jay S. Bybee wrote:

“In my view, the district court’s decision to deny leave to amend after Parsittie failed to cure the defects in his first opportunity to amend is exactly the type of decision that falls within the trial court’s discretion ‘to achieve the orderly and expeditious disposition of cases.’…Where, as here, the plaintiff had prior opportunities to remedy pleading defects, we have held that the district court’s discretion to grant or deny leave to amend is ‘particularly broad.’ ”

He added:

“Not only did the district court previously grant Parsittie leave to amend, it provided the blueprint for such amendment and warned Parsittie that further amendment would not be allowed. Parsittie was not blindsided by the dismissal, nor did he demonstrate to the district court that further amendment would cure the deficiency.”

The case is Parsittie v. Schneider Logistics, Inc., 20-55470.

 

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