Harvey C. Berger (SBN 102973)

Timothy G. Williams (SBN 193810)

POPE & BERGER

550 West "C" Street, Suite 1600

San Diego, California 92101

Telephone: (619) 595-1366

Facsimile: (619) 595-1313

 

 

Attorneys for Plaintiffs,

 

XXXXXXXXXXXXXXX

 

individually, and on behalf of all other similarly

situated current and former employees of

YYYYYYYYYYYYYYYY

throughout the State of California

 

 

 

 

IN THE UNITED STATES DISTRICT COURT

 

CENTRAL DISTRICT OF CALIFORNIA

 

 

 

XXXXXXXXXXXXXXX

 

individually, and on behalf of all other similarly situated current and former employees of YYYYYYYYYYYYYYYY throughout the State of California,

 

          Plaintiffs,

 

v.

 

YYYYYYYYYYYYYYYY,

a California corporation;

and DOES 1 through 100, inclusive,

 

          Defendants.


 


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Case No. _______________

 

 

 

PLAINTIFFS’ ORIGINAL

CLASS ACTION COMPLAINT

FOR DAMAGES;

DEMAND FOR JURY TRIAL


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          Plaintiffs XXXXXXXXXXXXXXX

 

(hereinafter collectively referred to as “Named Plaintiffs”), individually, and on behalf of all other similarly situated current and former employees of YYYYYYYYYYYYYYYY (hereinafter, collectively referred to as “Plaintiffs”), bring this Class Action on behalf of themselves and all other current and former employees throughout the State of California of YYYYYYYYYYYYYYYY and DOES 1 - 150 who are similarly situated, to recover, among other things, unpaid wages and benefits, interest, attorneys’ fees, penalties, costs, and expenses pursuant to the federal Workers’ Adjustment and Retraining Notification Act, 29 U.S.C. §§ 2101, et. seq. Named Plaintiffs reserve the right to name additional class representatives throughout the State of California, and hereby allege, as follows:

 

I. JURISDICTION, VENUE, & THE PARTIES

          1.       Each of the Named Plaintiffs is, and at all relevant times alleged herein was, a citizen and resident of the Sate of California.

          2.       Named Plaintiffs are informed and believe, and thereon allege, that Defendant YYYYYYYYYYYYYYYY (“YYYYYYYYYYYYYYYY”) is, and at all times relevant hereto was, a corporation organized and existing under and by virtue of the laws of the State of California having its principal place of business in the State of California and within this Central District of California, and is, and at all times relevant hereto was, qualified to transact and conduct business in the State of California. Named Plaintiffs are further informed and believe, and thereon allege, that YYYYYYYYYYYYYYYY does, and at all relevant times alleged herein did, maintain offices and transact and conduct business in the State of California and within this Central District of California.

          3.       Named Plaintiffs are informed and believe, and thereon allege, that DOES 1 - 150 are, and at all times relevant hereto were, officers, executives, directors, or shareholders of YYYYYYYYYYYYYYYY who were acting on behalf of YYYYYYYYYYYYYYYY in the establishment of, or ratification of, the aforementioned violations of the federal Workers’ Adjustment and Retraining Notification Act (“WARN Act”), 29 U.S.C. §§ 2101, et. seq. Named Plaintiffs are further informed and believe, and thereon allege, that DOES 1 - 150 are, and at all times relevant hereto were, citizens and residents of the State of California, and at all times mentioned herein held executive positions with YYYYYYYYYYYYYYYY and acted on behalf of YYYYYYYYYYYYYYYY, which included decision-making responsibility for, and establishment of, practices or policies for YYYYYYYYYYYYYYYY resulting in the aforementioned violations of the WARN Act.

          4.       Named Plaintiffs are informed and believe, and thereon allege, that YYYYYYYYYYYYYYYY and DOES 1 - 150 (hereinafter collectively referred to as “Defendants”) are, and at all times relevant hereto were, Plaintiffs’ joint employers by virtue of a joint enterprise. Plaintiffs have performed services for each and every of Defendants, and to the mutual benefit of all Defendants, and all Defendants shared control of Plaintiffs as employees, either directly or indirectly, and the manner in which Defendants’ business is conducted.

          5.       Named Plaintiffs are informed and believe, and thereon allege, that there exists such a unity of interest and ownership between YYYYYYYYYYYYYYYY and DOES 1 - 150 that the individuality and separateness of Defendants have ceased to exist. The business affairs of YYYYYYYYYYYYYYYY and DOES 1 - 150, are, and at all times relevant hereto were, so mixed and intermingled that the same cannot reasonably be segregated, and the same are in inextricable confusion. YYYYYYYYYYYYYYYY is, and at all times relevant hereto was, used by DOES 1 - 150 as a mere shell and conduit for the conduct of certain of Defendants’ affairs. The recognition of the separate existence of YYYYYYYYYYYYYYYY would not promote justice, in that it would permit Defendants to insulate themselves from liability to Plaintiffs. Accordingly, YYYYYYYYYYYYYYYY constitutes the alter ago of DOES 1 - 150, and the fiction of their separate existence must be disregarded in equity and for the ends of justice because such disregard is necessary to avoid fraud and injustice to Plaintiffs herein.

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          6.       Named Plaintiffs are informed and believe and thereon allege (unless otherwise alleged in this Complaint), that at all relevant times herein, all Defendants were the agents, employees and/or servants, masters or employers of the remaining Defendants, and in doing the things hereinafter alleged, were acting within the course and scope of such agency or employment, and with the approval and ratification of each of the other Defendants.

          7.       The true names and capacities, whether individual, corporate, associate, or otherwise, of DOES 1 through 150, inclusive, are unknown to Named Plaintiffs, who therefore sue DOES 1 through 150 by fictitious names. Named Plaintiffs will amend this Complaint to show their true names and capacities when they have been ascertained.

          8.       The jurisdiction of this Court over the subject matter of this action is predicated upon 28 U.S. C. § 1331, and the provisions of the WARN Act, 29 U.S.C. §§ 2101, et. seq.

          9.       Venue in this, the United States District Court for the Central District of California, is proper under the provisions of 28 U.S.C. §§ 1391(b)(1), (b)(2), and/or (b)(3) because:

(A) all Defendants reside in the State of California, and YYYYYYYYYYYYYYYY, and some or all of DOES 1 through 150, reside within this, the Central District of California; further, YYYYYYYYYYYYYYYY is incorporated in the State of California having its principal place of business within this, the Central District of California;

(B) a substantial part of the events or omissions giving rise to Plaintiffs’ claims occurred within this, the Central District of California; and

(C) YYYYYYYYYYYYYYYY may be found within this, the Central District of California.

 

II. FACTUAL ALLEGATIONS

          10.     The WARN Act, codified at 29 U.S.C. §§ 2101, et. seq., is applicable to any business enterprise that employs at least one hundred (100) employees on a full-time and/or part-time basis (depending on the total number of hours worked by its workforce). The WARN Act makes it unlawful for any such employer cause an “employment loss,” as defined by the statute, affecting a certain minimum number of employees and/or percentage of its workforce through either a statutorily-defined “plant closing” or “mass layoff” without giving proper notice to the affected employees. The WARN Act also has floating window-periods of both thirty (30) days and ninety (90) days surrounding a date of “plant closing” or “mass layoff” in which employment actions are aggregated to determine if WARN Act notification is necessary.

          11.     On or about June 5, 2000, and within the thirty (30) days and ninety (90) days surrounding that date, YYYYYYYYYYYYYYYY was a business enterprise covered by the provisions of the WARN Act operating a business and employing its employees throughout southern California. On or about June 5, 2000, and within the thirty (30) days and ninety (90) days surrounding that date, Defendants caused an employment loss of a vast majority of their workforce sufficient to trigger their obligations under the WARN Act to properly notify those affected employees; however, Defendants failed to properly notify the affected employees as required by the WARN Act. Plaintiffs are former employees of Defendants who were subjected to unlawful employment losses by Defendants in violation of the provisions of the WARN Act.

 

III. CLASS ACTION DESIGNATION

          12.     This action is appropriately suited for a Class Action because:

a.The potential class is a significant number because Named Plaintiffs are informed and believe, and thereon allege, that Defendants employed over one hundred thirty (130) employees as of June 5, 2000 (and within the thirty (30) days and ninety (90) days surrounding that date), and caused an unlawful employment loss to over one hundred (100) of such employees as of June 5, 2000 (and within the thirty (30) days and ninety (90) days surrounding that date). Therefore, the total class is estimated to be over one hundred (100) former employees of Defendants. Joinder of all former employees individually would be impractical;

b.This action involves common questions of law and fact to the potential class because the action focuses on the Defendants’ systematic course of illegal conduct with respect to notification duties and obligations under the WARN Act.

c.The claims of the Named Plaintiffs for back pay, benefits, and other relief under the WARN Act are typical of the class because Defendants’ failure to comply with the notification provisions of the WARN Act entitles each class member is to similar back pay, benefits, and other relief.

d.The Named Plaintiffs are able to fairly and adequately protect the interests of all members of the class because it is in their best interests to prosecute the claims alleged herein to obtain full compensation due to them for all back pay, benefits, and other relief afforded under the WARN Act.

 

IV. PLAINTIFFS’ CAUSES OF ACTION

COUNT ONE:

FAILURE TO PROVIDE PROPER NOTICE OF EMPLOYMENT LOSSES

PURSUANT TO THE FEDERAL WORKERS’ ADJUSTMENT AND RETRAINING NOTIFICATION ACT, 29 U.S.C. §§ 2101, ET. SEQ.

BY PLAINTIFFS EMPLOYED IN THE STATE OF CALIFORNIA

(Against All DEFENDANTS)

          13.     Plaintiffs hereby reallege, and incorporate by reference as though set fully forth herein, the allegations contained in Paragraphs 1 through 12. This cause of action is plead against, Defendants YYYYYYYYYYYYYYYY, INC. and DOES 1 - 150, inclusive.

          14.     The federal Workers’ Adjustment and Retraining Act is codified at 29 U.S.C. §§ 2101, et. seq. The WARN Act is applicable to any business enterprise that employs a minimum of one hundred (100) employees (on a full-time and/or part-time basis depending on the total number of hours worked by its workforce). As of June 5, 2000, and within the thirty (30) days and ninety (90) days surrounding that date, YYYYYYYYYYYYYYYY was a business enterprise covered by the provisions of the WARN Act operating a business and employing its employees throughout southern California. As of June 5, 2000, and within the thirty (30) days and ninety (90) days surrounding that date, Plaintiffs were employed by Defendants.

          15.     Under the WARN Act, if an employer intends to cause an “employment loss” defined as either:

          a.        a “plant closing” which affects at least fifty (50) employees during any thirty (30) day period, or

          b.       a “mass layoff” during any thirty (30) day period which affects either one third of the employer’s total workforce (so long as the “employment loss” affects at least fifty (50) employees), or at least five hundred (500) employees,

then the employer must provide written notice to the affected employees at least sixty (60) days before the date of employment loss. Further, any employment losses for two (2) or more groups of employees at a single site of employment sufficient in total number to trigger the notification requirement, which occur within any ninety (90) day period, and which are not the result of separate and distinct actions and causes not intended to violate the WARN Act, require that the employer must provide written notice to the affected employees at least sixty (60) days before the date of employment loss.

          16.     On or about June 5, 2000, and within the thirty (30) days and ninety (90) days surrounding that date, Plaintiffs were subjected to employment losses by Defendants through plant closings and/or mass layoffs in sufficient number to require Defendants to provide at least sixty (60) days’ written notice to Plaintiffs of such employment losses.

          17.     As of on or about June 5, 2000, and within the thirty (30) days and ninety (90) days surrounding that date, Defendants had failed to provide at least sixty (60) days’ written notice to Plaintiffs of such employment losses. Further, on or about June 5, 2000, and since that time, Defendants have failed and refused to compensate Plaintiffs with all back pay, benefits, and other relief to which Plaintiffs are entitled as a result of Defendants’ violation of the WARN Act.

          18.     Defendants failure to comply with the WARN Act was intentional, willful, and without legal justification or excuse.

          19.     As a direct and proximate result of Defendants’ failure to comply with the written notification provisions of the WARN Act, each Plaintiff is entitled to recover back pay and benefits for each day of violation, up to sixty (60) days. Plaintiffs are also entitled to an award of reasonable attorneys’ fees, expenses, and costs incurred in this action.

          20.     WHEREFORE, Plaintiffs request relief as hereinafter provided.

 

V. PRAYER FOR RELIEF

          WHEREFORE, Plaintiffs pray for judgment as follows:

          1.       For nominal damages;

          2.       For compensatory damages;

          3...     For restitution of all monies, wages, and benefits due to Plaintiffs pursuant to the WARN Act, 29 U.S.C. §§ 2101, et. seq.;

          4.       For all other penalties due to Plaintiffs pursuant to the WARN Act, 29 U.S.C. §§ 2101, et. seq.;

          5.       For interest accrued to date;

          6.       For costs of suit and expenses incurred herein;

          8.       For reasonable attorney’s fees; and

          9.       For all such other and further relief that the Court may deem just and proper.

 

Respectfully submitted,

 

Dated: _______________                       POPE & BERGER

 

                                                         By:  _________________________

Harvey C. Berger

                                                                Timothy G. Williams

                                                                Attorneys for Plaintiffs

 

 


DEMAND FOR JURY TRIAL

          Pursuant to Fed. R. Civ. P. 38, and Local Rule 3.4.10.1., Plaintiffs hereby demand a Jury Trial.

 

Dated: _______________                       POPE & BERGER

 

                                                         By:  _________________________

Harvey C. Berger

                                                                Timothy G. Williams

                                                                Attorneys for Plaintiffs