2013-00151787-CU-OE

Sade Estes vs. Abercrombie and Fitch Stores, Inc.

Nature of Proceeding:    Motion to Stay Action
Nature of Proceeding:      Motion to Stay Action

Filed By:   Largent, Robin E.

Defendant’s Motion to Stay Action is DENIED.

Defendant moves to stay this action, on the grounds that an earlier filed class action in
Alameda County, Brown v. Abercrombie & Fitch Co., case no RG-13695930, , which
has been removed to the U.S.D.C. in the Northern District as case no CV-135205-
EDL, is pending between the same parties as to many of the same claims.

“The proponent of a stay bears the burden of establishing its need.” Clinton v. Jones
(1997) 520 U.S. 681, 708. “The [party moving] for a stay must make out a clear case of
hardship or inequity in being required to go forward, if there is even a fair possibility
that the stay […] will work damage to someone else. Only in rare circumstances will a
litigant in one cause be compelled to stand aside while a litigant in another settles the
rule of law that will define the rights of both.” Landis v. North American Co. (1936) 299
U.S. 248, 255 (emphasis added).

Although some of the causes of action in the Brown and Estes cases are the same
(Labor Code, sec. 2802, Labor Code, sec. 201 and B&P Code, sec. 17200), this Estes
action contains claims for unpaid wages and overtime under Labor Code, sec. 510, for
failure to provide meal periods under Labor Code, sec. 226 and for violation of Labor
Code, sec. 2699, et seq. which are not included in the Brown action.

Additionally, although the Brown class action purports to include as putative plaintiffs
non-exempt employees working at Abercrombie & Fitch, Hollister, Abercrombie & Fitch
Kids, and/or Gilly Hicks, the two named plaintiffs in Brown were never employed by
any retail store except Abercrombie & Fitch.

The Court is not persuaded that the putative class members of this action will be
adequately represented (or ultimately included in the class when certified) in the Brown
action. The Court is aware that it has the discretion to stay a state court action when a
Federal action is pending covering the same subject matter as is involved in a
California action. Caiafa Professional Law Corp. v. State Farm Fire & Cas. Co. (1993)
15 Cal. App. 4th 800, 804. Here, however, the Court perceives that the two actions do
not cover the same subject matter. Nor, given the facts presented, does the Court
believe that the fairest course for all the parties would be to stay the proceeding. See,
e.g. Landis v. North American Co. (1936) 299 U.S. 248, 254.

The Brown action was only filed a few days before the instant Estes action, thus no
class has been certified, no representation made that discovery has been completed,
nor any clear showing of prejudice to the defendant from opposing two suits, which are
not identical.

The moving party should keep this Court informed of class certification proceedings in
the Brown action, so that this Court may avoid certification of a second class as to the
same cause of action before two courts.  Newberg & Conte, Newberg on Class Actions
th
, § 7.31 (4   Ed. 2002)

The minute order is effective immediately.  No formal order pursuant to CRC Rule
3.1312 or further notice is required.