Opinion
No. CIV-02-0591-PHX-RCB.
December 31, 2008
ORDER
Currently pending before the court is plaintiffs' "Request to Set Status Conference[.]" Doc. 269. Also pending before the court is defendant Bashas', Inc. "Motion to Stay Proceedings Pending Petition for Writ of Certiorari or, in the Alternative, Motion to Extend Time to Respond to Plaintiffs' Request to Set Status Conference[.]" Doc. 270.
Background
In Parra v. Bashas', Inc., 536 F.3d 975 (9th Cir. 2008) ("Parra II"), the Ninth Circuit reversed and remanded this court's class certification order, Parra v. Bashas', Inc., 2005 WL 6182338 (D.Ariz. Aug. 29, 2005) ("Parra I"), as it pertained to plaintiffs' discriminatory pay claim. On September 12, 2008, the Ninth Circuit denied the petition for panel rehearing and the petition for rehearing en banc. Doc. 267-2. The Ninth Circuit's mandate issued on September 25, 2008 (doc. 267), thereby restoring jurisdiction to this court. See Sgaraglino v. State Farm Fire and Cas. Co., 896 F.2d 420, 421 (9th Cir. 1990) (defining the "issuance of the mandate" as "return[ing] [the case] to the district court's jurisdiction[]").
Two months later, plaintiffs filed a request for a status conference "in order to reopen discovery" and to have this court "set a briefing schedule for plaintiffs' motion for class certification of their Equal Pay Claim." Request (doc. 269) at 2:1-3. Given that discovery has been closed since April 2004, plaintiffs purportedly "need to obtain updated discovery concerning the status of defendant's pay policy and its impact on the putative class." Id. at 2:12-13. After the completion of such discovery, plaintiffs intend to "file an updated motion for certification of the equal pay claim." Id. at 2:10.
On December 1, 2008, in anticipation of filing a petition for certiorari, Bashas' filed their motion for a stay pending the United States' Supreme Court's disposition of that petition. Alternatively, Bashas' contends that this court "should at least grant a stay of all proceedings regarding plaintiffs' pay claim, and, if necessary, grant Bashas' an extension of time to respond to Plaintiffs' request for a status conference, with Bashas' response due ten . . . days after this Court enters its order regarding [this] motion." Reply (doc. 272) at 7:10-13. In the meantime, on December 11, 2008, Bashas' did file its Petition of a Writ of Certiorari (No. 08-768).
Discussion
I. Stay
Having considered the parties' respective arguments as to the necessity of a stay pending the Supreme Court's resolution of Bashas' petition for certiorari, the court hereby DENIES, without prejudice to renew, Bashas' motion for a stay. Given the manner in which this litigation will be proceeding for the foreseeable future, the court finds that Bashas' has not met its burden of showing the necessity for a stay at this juncture.
II. Extension of Time
Given the denial of Bashas' stay motion, the court hereby GRANTS Bashas' motion for alternative relief. More specifically, Bashas' has until January 13, 2009, by which to file and serve its response to plaintiffs' "Motion to Set Status Conference" (doc. 269). Plaintiffs' reply, if any, shall be filed and served in accordance with LRCiv 7.2(d).
III. Status Conference
The court hereby conditionally GRANTS plaintiffs' "Request to Set Status Conference" (doc. 269). Such Status Conference shall be held, if at all, on February 2, 2009, at 2:30 p.m., at the District Court of the United States for the District of Arizona, Sandra Day O'Connor Courthouse, 401 West Washington Street, Phoenix, Arizona, 6th Floor, Courtroom 606. This stay is subject to being vacated, however, in the event the court ultimately determines that a status conference at that point is unnecessary.
IT IS ORDERED that:
(1) Plaintiffs' "Request to Set Status Conference" (doc. 269) is GRANTED in accordance with the terms set forth in the preceding paragraph; and
(2) Defendant's motion (doc. 270) is DENIED without prejudice to renew insofar as it is seeking a stay, but is GRANTED, as set forth above, to the extent defendant is seeking an extension of time in which to respond to plaintiffs' "Request to Set Status Conference[.]"