For years, federal courts in California have been inundated with wage and hour class actions.  Because these cases often clogged district court dockets for months (and, sometimes, even years) on end, the Central District of California issued the former Local Rule 23-3, which set a 90-day deadline to file a motion for class certification from the filing of a complaint in or removal of an action to federal court.  In 2018, the Ninth Circuit invalidated the 90-day deadline, but judges continue to manage their dockets by imposing shorter than average deadlines to keep cases moving.  And, as a recent Central District Judge’s order demonstrates, these deadlines are firm, even during the COVID-19 pandemic.

On July 22, 2020, Judge John F. Walter issued an order granting Denny’s Inc.’s motion to strike plaintiffs Myra Deleon and Karla Jiminez’s (“Plaintiffs’”) class allegations.  Plaintiffs had filed their putative wage and hour class action in California Superior Court on October 28, 2019, and Denny’s removed it to federal court on February 3, 2020.  Approximately a month later, the District Court issued a Scheduling Order requiring Plaintiffs to file their motion for class certification 120 days after removal—i.e., by June 2, 2020.  When Plaintiffs failed to meet that deadline, Denny’s filed a motion to strike their class allegations.

In arguing that their failure to meet the deadline constituted “excusable neglect,” Plaintiffs’ counsel invoked what amounted to a the “dog ate my homework” argument, with a COVID-19 angle:  They claimed that the staff member responsible for calendaring deadlines had been on a leave of absence and, due to COVID-19 shelter-in-place orders, their office staff did not discover the issue because all support staff had been furloughed.  However, Denny’s presented evidence that the employee’s leave actually began eight days after the Court’s Scheduling Order, which was issued more than two weeks before the shelter-in-place orders that purportedly triggered staff furloughs.  The Court also noted that Plaintiffs’ counsel were ultimately responsible for managing their deadlines—and could not get away with simply delegating their obligations to furloughed (non-attorney) staff.  The Court also based its decision on the facts that Plaintiffs’ counsel failed to propound “even the most basic discovery requests” and had served untimely responses to Denny’s discovery—presumably based on the mistaken belief that COVID-19 could be used as an excuse.  The Court similarly rejected any argument that a lack of familiarity with the Local Rules constituted a valid reason for missing the deadline.

Ultimately, Judge Walter’s order is a reminder of the importance of diligent lawyering, including proper calendaring of deadlines even in the time of a pandemic!  And, it is a clear indication that, in the absence of truly extenuating circumstances, even COVID-19 is not a “get out of jail free” card.

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Photo of Tony Oncidi Tony Oncidi

Anthony J. Oncidi is the co-chair of the Labor & Employment Law Department and heads the West Coast Labor & Employment group in the firm’s Los Angeles office.

Tony represents employers and management in all aspects of labor relations and employment law, including…

Anthony J. Oncidi is the co-chair of the Labor & Employment Law Department and heads the West Coast Labor & Employment group in the firm’s Los Angeles office.

Tony represents employers and management in all aspects of labor relations and employment law, including litigation and preventive counseling, wage and hour matters, including class actions, wrongful termination, employee discipline, Title VII and the California Fair Employment and Housing Act, executive employment contract disputes, sexual harassment training and investigations, workplace violence, drug testing and privacy issues, Sarbanes-Oxley claims and employee raiding and trade secret protection. A substantial portion of Tony’s practice involves the defense of employers in large class actions, employment discrimination, harassment and wrongful termination litigation in state and federal court as well as arbitration proceedings, including FINRA matters.

Tony is recognized as a leading lawyer by such highly respected publications and organizations as the Los Angeles Daily JournalThe Hollywood Reporter, and Chambers USA, which gives him the highest possible rating (“Band 1”) for Labor & Employment.  According to Chambers USA, clients say Tony is “brilliant at what he does… He is even keeled, has a high emotional IQ, is a great legal writer and orator, and never gives up.” Other clients report:  “Tony has an outstanding reputation” and he is “smart, cost effective and appropriately aggressive.” Tony is hailed as “outstanding,” particularly for his “ability to merge top-shelf lawyerly advice with pragmatic business acumen.” He is highly respected in the industry, with other commentators lauding him as a “phenomenal strategist” and “one of the top employment litigators in the country.”

“Tony is the author of the treatise titled Employment Discrimination Depositions (Juris Pub’g 2020; www.jurispub.com), co-author of Proskauer on Privacy (PLI 2020), and, since 1990, has been a regular columnist for the official publication of the Labor and Employment Law Section of the State Bar of California and the Los Angeles Daily Journal.

Tony has been a featured guest on Fox 11 News and CBS News in Los Angeles. He has been interviewed and quoted by leading national media outlets such as The National Law JournalBloomberg News, The New York Times, and Newsweek and Time magazines. Tony is a frequent speaker on employment law topics for large and small groups of employers and their counsel, including the Society for Human Resource Management (“SHRM”), PIHRA, the National CLE Conference, National Business Institute, the Employment Round Table of Southern California (Board Member), the Council on Education in Management, the Institute for Corporate Counsel, the State Bar of California, the California Continuing Education of the Bar Program and the Los Angeles and Beverly Hills Bar Associations. He has testified as an expert witness regarding wage and hour issues as well as the California Fair Employment and Housing Act and has served as a faculty member of the National Employment Law Institute. He has served as an arbitrator in an employment discrimination matter.

Tony is an appointed Hearing Examiner for the Los Angeles Police Commission Board of Rights and has served as an Adjunct Professor of Law and a guest lecturer at USC Law School and a guest lecturer at UCLA Law School.

Photo of Philippe A. Lebel Philippe A. Lebel

Philippe (Phil) A. Lebel represents employers in all aspects of employment litigation, including wage and hour, wrongful termination, discrimination, harassment, retaliation, defamation, trade secrets, and breach of contract litigation, in both the single-plaintiff and class- and/or representative-action context, at both the trial and…

Philippe (Phil) A. Lebel represents employers in all aspects of employment litigation, including wage and hour, wrongful termination, discrimination, harassment, retaliation, defamation, trade secrets, and breach of contract litigation, in both the single-plaintiff and class- and/or representative-action context, at both the trial and appellate level, and before administrative agencies.

In addition to his litigation work, Phil regularly advises clients regarding compliance with federal, state and local employment laws, and assists a variety of companies and financial firms in evaluating labor and employment issues in connection with corporate transactions. Phil also has experience assisting employers with sensitive employee investigations and trainings.  Phil also represents employers in connection with labor law matters, such as labor arbitrations and proceedings before the National Labor Relations Board.

Phil has assisted clients in a wide array of sectors including in the biotech, education, entertainment, financial services, fitness, healthcare, high-tech, legal services, manufacturing, media, professional services, sports, and staffing industries, among others.

Phil regularly speaks on emerging issues for employers and has been published or quoted in Law360, the Daily JournalThe Hollywood ReporterBusiness Insurance, and SHRM.org regarding a variety of labor and employment law topics.

During college, Phil worked on political campaigns in Atlanta, Georgia and Birmingham, Alabama, and was an intern with the National Gay and Lesbian Task Force and the Gay and Lesbian Victory Fund. Phil is a former member of the Board of Directors of the AIDS Legal Referral Panel.