Case 2:19-cv-01717-RGK-AGR Document 254 Filed 05/08/20 Page 1 of 8 Page ID #:10307 1 2 3 4 5 6 7 8 9 10 11 12 13 14 Jeffrey L. Kessler (pro hac vice) jkessler@winston.com David G. Feher (pro hac vice) dfeher@winston.com WINSTON & STRAWN LLP 200 Park Avenue New York, New York 10166 Telephone: (212) 294- 6700 Facsimile: (212) 294-4700 Cardelle B. Spangler (pro hac vice) cspangler@winston.com WINSTON & STRAWN LLP 35 West Wacker Drive Chicago, Illinois 60601 Telephone: (312) 558-5600 Facsimile: (312) 558-5700 Diana Hughes Leiden (SBN: 267606) dhleiden@winston.com WINSTON & STRAWN LLP 333 South Grand Avenue, 38th Floor Los Angeles, California 90071-1543 Telephone: (213) 615-1700 Facsimile: (213) 615-1750 17 Jeanifer E. Parsigian (SBN: 289001) jparsigian@winston.com WINSTON & STRAWN LLP 101 California St., 35th Floor San Francisco, California 94111 Telephone: (415) 591-1000 Facsimile: (415) 591-1400 18 Attorneys for Plaintiffs 15 16 19 UNITED STATES DISTRICT COURT 20 CENTRAL DISTRICT OF CALIFORNIA – WESTERN DIVISION 21 ALEX MORGAN, et al., 22 Plaintiffs, 23 v. 24 UNITED STATES SOCCER FEDERATION, INC., 25 26 27 Defendant. Case No. 2:19-CV-01717-RGK-AGR Assigned to: Judge R. Gary Klausner PLAINTIFFS’ UNOPPOSED EX PARTE APPLICATION TO STAY THE JUNE 16, 2020 TRIAL PENDING THE RESOLUTION OF PLAINTIFFS’ RULE 54(b) MOTION AND ANY APPEAL [Filed Concurrently with Memorandum of Points & Authorities; Declaration of Diana Hughes Leiden; and [Proposed] Order] 28 1 PLAINTIFFS’ UNOPPOSED EX PARTE APPLICATION Case 2:19-cv-01717-RGK-AGR Document 254 Filed 05/08/20 Page 2 of 8 Page ID #:10308 1 TO THE COURT, DEFENDANT, AND ITS ATTORNEYS OF RECORD: 2 PLEASE TAKE NOTICE that pursuant to Local Rule 7-19, Plaintiffs Alex 3 Morgan, et al. (“Plaintiffs”) hereby apply to the Court ex parte for an order to stay the 4 currently scheduled June 16, 2020 jury trial on their working conditions claims, pending 5 a ruling from this Court on their motion pursuant to Federal Rule of Civil Procedure 6 54(b) seeking entry of final judgment as to their pay discrimination claims. Further, if 7 this Court grants the 54(b) motion, Plaintiffs request a stay of the trial pending 8 resolution of their appeal. If the Court denies the 54(b) motion, Plaintiffs ask that the 9 Court set a date for the trial a few months out, at a time that is practicable in light of 10 COVID-19 restrictions. Defendant United States Soccer Federation, Inc. (“Defendant”) 11 does not oppose this relief. 12 As explained further in the accompanying Memorandum of Points and 13 Authorities, good cause exists to grant this unopposed Ex Parte Application in order to 14 conserve the judicial and party resources that would be expended in holding two 15 separate trials. Indeed, given the ongoing COVID-19 pandemic, it is particularly 16 important to avoid holding two separate jury trials unnecessarily, in light of the need 17 for travel, the restrictions arising from “shelter-in-place” orders around the country, the 18 complexity of holding a trial with social distancing practices, and the health risks to trial 19 participants that may result from multiple trials. 20 On May 3, 2020, Plaintiffs provided notice to Defendant of their intent to file the 21 instant Ex Parte Application. Defendant does not oppose this Ex Parte Application and 22 agrees that the trial should be stayed pending determination of the Rule 54(b) motion 23 and any appeal. Declaration of Diana Hughes Leiden (“Leiden Decl.”) ¶ 2. 24 This request is properly before the Court on an ex parte basis because a regularly 25 noticed Motion would not be heard by the Court until after the currently scheduled June 26 1, 2020 pretrial conference. 27 This Application is based on the attached Memorandum, [Proposed] Order, the 28 Declaration of Diana Hughes Leiden, and the related pleadings and orders in this case. 2 PLAINTIFFS’ UNOPPOSED EX PARTE APPLICATION Case 2:19-cv-01717-RGK-AGR Document 254 Filed 05/08/20 Page 3 of 8 Page ID #:10309 1 DATED: May 8, 2020 Respectfully submitted, 2 WINSTON & STRAWN LLP 3 By: /s/ Jeffrey L. Kessler Jeffrey L. Kessler (pro hac vice) Cardelle B. Spangler (pro hac vice) David G. Feher (pro hac vice) Diana Hughes Leiden Jeanifer E. Parsigian Lev Tsukerman 4 5 6 7 8 Attorneys for Plaintiffs Alex Morgan, et. al. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 PLAINTIFFS’ UNOPPOSED EX PARTE APPLICATION Case 2:19-cv-01717-RGK-AGR Document 254 Filed 05/08/20 Page 4 of 8 Page ID #:10310 1 2 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION 3 Plaintiffs apply to the Court ex parte for an order to stay the currently scheduled 4 June 16, 2020 trial on Plaintiffs’ remaining claims pending this Court’s ruling on their 5 54(b) motion. If the 54(b) motion is granted, Plaintiffs further seek to stay the trial until 6 the resolution of Plaintiffs’ appeal. The reason for a stay is plain: if this matter is not 7 stayed and the working conditions claims proceed to trial now, there is a risk of having 8 to conduct a second trial involving the very same participants, should the Ninth Circuit 9 reverse this Court’s summary judgment ruling and allow Plaintiffs’ pay discrimination 10 claims to proceed. It would be far more efficient—and far safer and less complicated, 11 in light of the current COVID-19 crisis—to continue the current trial date until after the 12 54(b) determination and any appeal, to avoid the possibility of needing to conduct two 13 trials. It is common in the Ninth Circuit for courts to grant a stay of trial on remaining 14 claims when a party seeks a certification and appeal under Rule 54(b). Defendant does 15 not oppose the relief sought in this application. 16 II. RELEVANT BACKGROUND 17 Trial in this action was originally set for May 5, 2020. Dkt. No. 58. The trial 18 date was then continued to June 16, 2020 in light of the ongoing COVID-19 crisis and 19 its attendant restrictions, including “shelter-in-place” orders by state governments and 20 the Central District of California’s Continuity of Operations Plan, which provided that 21 no jurors would be called in for service in civil or criminal jury trials. Dkt. No. 239. 22 Subsequently, that plan was extended through June 1, 2020. General Order No. 20-05. 23 On February 20, 2020, Plaintiffs moved for summary judgment on Defendant’s 24 liability under the Equal Pay Act, for compensation-based discrimination under Title 25 VII, and on certain of Defendant’s affirmative defenses. Dkt. No. 170. Defendant 26 moved for summary judgment on Plaintiffs’ pay discrimination claims under the Equal 27 Pay Act and Title VII and their working conditions claims under Title VII. Dkt. No. 28 171. 4 PLAINTIFFS’ UNOPPOSED EX PARTE APPLICATION Case 2:19-cv-01717-RGK-AGR Document 254 Filed 05/08/20 Page 5 of 8 Page ID #:10311 1 On May 1, 2020, the Court granted summary judgment in favor of Defendant on 2 Plaintiffs’ pay discrimination claims under the Equal Pay Act and Title VII. Dkt. No. 3 250. It also ruled in favor of Defendant on Plaintiffs’ discriminatory field surfaces claim 4 under Title VII. Id. As a result of this ruling, the remaining claims to be tried on June 5 16 are Plaintiffs’ Title VII claims based on disparities in travel conditions (charter 6 flights and hotel accommodations) and personnel and support services (medical and 7 training support). Id. 8 On May 8, 2020, and concurrently with the instant unopposed Ex Parte 9 Application, Plaintiffs filed an unopposed motion under Federal Rule of Civil Procedure 10 54(b) seeking an entry of final judgment as to their Equal Pay Act and Title VII pay 11 discrimination claims, to allow an immediate appeal on those claims to the Ninth 12 Circuit. Plaintiffs noticed this motion to be heard on June 8, 2020. If the Court grants 13 the 54(b) motion, Plaintiffs shall promptly file an appeal of this Court’s ruling on 14 summary judgment and will also file a motion with the Ninth Circuit seeking an 15 expedited schedule on appeal. 16 III. ARGUMENT 17 The trial currently scheduled in June on Plaintiffs’ remaining claims should be 18 stayed pending the Court’s ruling on their 54(b) motion, which is noticed to be heard 19 on June 8, 2020. And, if this Court grants Plaintiffs’ Rule 54(b) motion, then this Court 20 should further stay the trial pending Plaintiffs’ appeal of the Court’s ruling on summary 21 judgment. A stay is warranted in order to avoid the possibility of having to conduct a 22 second trial in the event the Ninth Circuit reverses the Court’s summary judgment ruling 23 and allows Plaintiffs’ pay discrimination claims to go forward. It would be much more 24 efficient, and safer from a health standpoint, to hold a single trial at the conclusion of 25 Plaintiffs’ appeal. Defendant does not oppose the stay. 26 To promote “economy of time and effort for itself, for counsel, and for litigants,” 27 a district court may in its discretion stay all or part of an action. CMAX, Inc. v. Hall, 28 300 F.2d 265, 268 (9th Cir. 1962). This authority rests on the court’s “inherent power 5 PLAINTIFFS’ UNOPPOSED EX PARTE APPLICATION Case 2:19-cv-01717-RGK-AGR Document 254 Filed 05/08/20 Page 6 of 8 Page ID #:10312 1 to control the disposition of the causes on its docket.” Id. This inherent authority is 2 very broad: 3 A trial court may, with propriety, find it is efficient for its own docket and 4 the fairest course for the parties to enter a stay of an action before it, 5 pending resolution of independent proceedings which bear upon the case. 6 This rule applies whether the separate proceedings are judicial, 7 administrative, or arbitral in character, and does not require that the issues 8 in such proceedings are necessarily controlling of the action before the 9 court. 10 Leyva v. Certified Grocers of California Ltd., 593 F.2d 857, 863-64 (9th Cir. 1979). 11 Here, the risk of having to conduct a second trial warrants a stay. It is in the 12 interest of the Court and the parties to conserve resources by having only a single trial 13 on all the discrimination claims by the same plaintiffs against the same employer, 14 particularly during the current global COVID-19 pandemic. The party and judicial 15 resources that would be expended in connection with two separate trials would be 16 substantial. Furthermore, granting a stay would eliminate the possible need to call in 17 the parties, witnesses, jurors, and court personnel for a trial in the near term during the 18 height of the current pandemic, only to hold a second trial with all the same participants 19 (and another set of jurors) after Plaintiffs’ appeal. California Governor Gavin Newsom 20 has issued a “stay at home” order with no set end date. See Exec. Order N-33-20. 21 Additionally, counsel of record and witnesses reside in locations that are operating 22 under similar “shelter-in-place” orders, including New York and Illinois. And at the 23 time of the June 16, 2020 trial, jurors and witnesses and counsel and court personnel 24 will undoubtedly be required to practice physical distancing in order to slow the spread 25 of the coronavirus.1 See also Plaintiffs’ 54(b) Motion at 8. 26 27 28 The potential waste of resources and public health risks can be avoided 1 By way of example, counsel for Plaintiffs’ hotel reservations have been cancelled, as the hotel is closed through July 1, 2020 due to the pandemic. 6 PLAINTIFFS’ UNOPPOSED EX PARTE APPLICATION Case 2:19-cv-01717-RGK-AGR Document 254 Filed 05/08/20 Page 7 of 8 Page ID #:10313 1 completely by a short stay of proceedings until after resolution of Plaintiffs’ 54(b) 2 motion, and—if the motion is granted—until after a decision from the Ninth Circuit, 3 which Plaintiffs will seek to expedite. There would be no resulting harm or prejudice 4 to Defendant (who does not oppose this Ex Parte Application), given that Defendant 5 would benefit equally from the conservation of time and resources associated with 6 holding a single trial, as well as the avoidance of health risks posed by the pandemic. 7 Even without a pandemic, courts commonly stay the balance of the case 8 pending appeal following the grant of Rule 54(b) certification. See, e.g., Matek v. 9 Murat, 638 F. Supp. 775, 784 (C.D. Cal. 1986) (certifying ruling as a Rule 54(b) 10 judgment and ordering that if “an appeal is taken, in the interests of efficiency and 11 fairness, the Court will stay all proceedings on the remaining … claims pending the 12 Ninth Circuit’s decision”); Doe v. Univ. of Cal., No. C-92-2284 SAW, 1993 WL 13 361540, *2 (N.D. Cal. Sept. 2, 1993) (“If a district court certifies claims for appeal 14 pursuant to Rule 54(b), it should stay all proceedings on the remaining claims if the 15 interests of efficiency and fairness are served by doing so.”); Access Mediquip L.L.C. v. 16 UnitedHealth Group Inc., No. H-09-2965, 2010 WL 4812968, *4 (S.D. Tex. Nov. 19, 17 2010) (certifying ruling as a Rule 54(b) judgment and holding that the judgment 18 “together with a stay pending appeal ... is an efficient way to avoid duplicative, 19 potentially unnecessary, discovery, motion practice, and trials”); Las Vegas Sands, Inc. 20 v. Culinary Workers Union, No. CV-S-9700467-PMP RKH, 2002 WL 32511175, *1 21 (D. Nev. July 3, 2002) (certifying ruling as a Rule 54(b) judgment and holding that a 22 “stay pending that appeal substantially reduces the risk of a second trial, which would 23 consume the valuable time and resources of this Court and the parties”); McLean v. 24 Badger Equip. Co., 868 F. Supp. 258, 263 (E.D. Wis. 1994) (certifying ruling as a Rule 25 54(b) judgment and, to avoid the possibility of two trials and to “conserve judicial 26 resources,” staying proceedings on the remaining claim pending appeal). This Court 27 should do the same here. And even beyond judicial efficiency, the risks posed by the 28 7 PLAINTIFFS’ UNOPPOSED EX PARTE APPLICATION Case 2:19-cv-01717-RGK-AGR Document 254 Filed 05/08/20 Page 8 of 8 Page ID #:10314 1 global pandemic present another compelling reason to avoid the possibility of needing 2 to hold two separate trials involving the same parties and participants. 3 IV. CONCLUSION 4 For all of the foregoing reasons, Plaintiffs respectfully request that the Court 5 grant its unopposed Ex Parte Application and stay proceedings in this case pending its 6 decision on Plaintiffs’ 54(b) motion and, if that motion is granted, resolution of the 7 appeal. If the trial is not stayed pending Plaintiffs’ 54(b) motion and appeal, the Court 8 and the parties risk having to conduct two trials, which would not only waste judicial 9 and party time and resources but would also pose difficult logistical circumstances and 10 public health risks in light of the current COVID-19 pandemic. If the Court denies the 11 54(b) motion, Plaintiffs ask that the Court set a date for the trial a few months out, at a 12 time that is practicable in light of COVID-19 restrictions. 13 14 DATED: May 8, 2020 Respectfully submitted, 15 WINSTON & STRAWN LLP 16 By: /s/ Jeffrey L. Kessler Jeffrey L. Kessler (pro hac vice) Cardelle B. Spangler (pro hac vice) David G. Feher (pro hac vice) Diana Hughes Leiden Jeanifer E. Parsigian Lev Tsukerman 17 18 19 20 21 Attorneys for Plaintiffs Alex Morgan, et. al. 22 23 24 25 26 27 28 8 PLAINTIFFS’ UNOPPOSED EX PARTE APPLICATION