Case 3:19-cv-05279-EMC Document 208 Filed 12/08/20 Page 1 of 5
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`JACOB MCGRATH,
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`Plaintiff,
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`v.
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`DOORDASH, INC.,
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`Defendant.
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`Case No. 19-cv-05279-EMC
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`ORDER GRANTING PLAINTIFFS’
`MOTION FOR LEAVE TO FILE
`SUPPLEMENTAL EXHIBITS, AND
`DENYING PLAINTIFFS’ MOTION
`FOR RECONSIDERATION
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`Docket Nos. 200, 206
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`The above-referenced case is a FLSA collective action. More than 3,000 individuals have
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`opted into the case (although no conditional certification has been issued as of yet which would
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`result in formal notice to potential collective members). Previously, the Court granted
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`DoorDash’s motion to compel arbitration. Specifically, the Court ordered to arbitration all
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`individuals who had opted into the lawsuit except for a handful of persons who had validly opted
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`out of the arbitration agreement. See Docket No. 199 (order).
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`Currently pending before the Court is Plaintiffs’ motion for reconsideration of that order.
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`The gist of Plaintiffs’ motion to reconsider is that the Court should invalidate the arbitration
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`agreement contained in the November 2019 Independent Contractor Agreement (“ICA”) because
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`DoorDash rolled out the arbitration agreement while this lawsuit was pending and without
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`notifying Plaintiffs’ counsel. Plaintiffs have also filed a motion for leave to file supplemental
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`exhibits in support of the motion to reconsider. Having considered the parties’ briefs and
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`accompanying submissions, the Court hereby GRANTS Plaintiffs’ motion for leave to file
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`supplemental exhibits but DENIES the motion for reconsideration.
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`Case 3:19-cv-05279-EMC Document 208 Filed 12/08/20 Page 2 of 5
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`A.
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`Plaintiffs’ Motion for Leave to File Supplemental Exhibits
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`I.
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`DISCUSSION
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`Plaintiffs seek leave to file two exhibits in support of their motion to reconsider. There are
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`two exhibits at issue:
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`• Exhibit A “lists the individuals who were presented with the [November 2019 ICA]
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`by Defendant, without notifying [Plaintiffs’] counsel, despite Defendant’s
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`knowledge of their legal representation”;
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`• Exhibit B “lists the individuals who had yet to opt-into this case, but who were
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`represented by the undersigned counsel, and were presented with [the November
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`ICA] by Defendant.” Supp. Ex. Mot. at 1-2.
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`Although Plaintiffs’ motion to reconsider is more obviously directed to the individuals listed in
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`Exhibit A (96 persons), Plaintiffs still argue that the November 2019 ICA should be invalidated
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`with respect to the individuals in Exhibit B (45 persons). According to Plaintiffs, if “Defense
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`counsel had timely conferred with [Plaintiffs’ counsel] regarding [the] planned arbitration
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`agreement roll-out [in November 2019], Plaintiff’s counsel would have had an opportunity to
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`notify Defense counsel of its representation of the individuals listed in Exhibit B.” Supp. Ex. Mot.
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`at 2.
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`The Court grants Plaintiffs leave to file the exhibits. The exhibits themselves do not
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`present any new legal arguments and therefore allowing Plaintiffs to file the exhibits does not
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`prejudice DoorDash.
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`B.
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`Plaintiffs’ Motion for Reconsideration
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`Plaintiffs move the Court to reconsider its arbitration order on the basis that there was a
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`manifest failure by the Court to consider material facts or dispositive legal arguments presented
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`before entry of its order. Plaintiffs assert two failures by the Court: (1) the Court did not consider
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`Plaintiffs’ objection that the arbitration agreement in the November 2019 ICA was rolled out
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`during this litigation and without notifying Plaintiffs of such and (2) the Court compelled all
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`Plaintiffs to arbitration (with the exception of a few who had validly opted out of arbitration) even
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`though DoorDash had not requested that relief.
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`Case 3:19-cv-05279-EMC Document 208 Filed 12/08/20 Page 3 of 5
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`As to Plaintiffs’ first argument, the Court finds that it has been waived. Plaintiffs knew
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`about the November 2019 ICA, and the arbitration agreement contained therein, as early as May
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`22, 2020, when DoorDash filed its motion to compel arbitration.1 When Plaintiffs filed their
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`opposition to the arbitration motion, they could have argued, but did not, that the arbitration
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`agreement in the November 2019 ICA should be invalidated because it was rolled out after this
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`lawsuit was filed and without notifying Plaintiffs of such. The argument is therefore waived.
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`Plaintiffs suggest that they were entitled to make the argument after the briefing on the
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`arbitration motion was completed because, on October 8, 2020, DoorDash filed a motion for leave
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`to file a supplemental declaration in support of its arbitration motion. Plaintiffs’ position lacks
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`merit for several reasons. First, DoorDash’s motion and supplemental declaration did not raise
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`any new legal argument that would justify Plaintiffs’ argument. The supplemental declaration
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`simply indicated that the bulk of the opt-ins to the collective had accepted the most current version
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`of the ICA (i.e., the November 2019 ICA). Second, even if the motion and supplemental
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`declaration had raised a new legal argument, Plaintiffs failed to timely oppose DoorDash’s
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`motion. DoorDash’s motion was a motion for administrative relief, and therefore, Plaintiffs’
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`opposition was due four days thereafter. See Civ. L.R. 7-11(b), (d) (providing that an opposition
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`to a motion for administrative relief must be filed “no later than 4 days after the motion has been
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`filed”; “[u]nless otherwise ordered, a Motion for Administrative Relief is deemed submitted for
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`immediate determination without hearing on the day after the opposition is due”). Because
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`DoorDash filed its motion on October 8, 2020, Plaintiffs’ opposition was due on October 14,
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`2020. Plaintiffs’ opposition (styled as “objections”) was not filed until October 23, 2020.2
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`1 The Court notes that Plaintiffs may have known about the November 2019 ICA even before May
`22, 2020. The November 2019 ICA was discussed in Judge Alsup’s Abernathy case (No. C-19-
`7545) as early as November 25, 2019. See Docket No. 144-2 (transcript for hearing in Abernathy).
`Plaintiffs may have been monitoring the Abernathy proceedings. Also, three of the individuals in
`this case who opted out of arbitration (Mr. Salmons, Ms. Benningfield, and Mr. Davis) did so on
`January 10, February 5, and April 2, 2020, respectively. See Docket No. 144-1 (letters). The
`DoorDash address to which the individuals sent their opt-outs was 303 2d Street – not 901 Market
`Street. The 901 Market Street address was the address listed for opt-outs in the November 2019
`ICA. The 303 2d Street address was the address listed in the ICA available on DoorDash’s
`website – a more updated version of the November 2019 ICA.
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` Even if DoorDash’s motion was a motion subject to the regular briefing schedule, Plaintiffs’
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`Case 3:19-cv-05279-EMC Document 208 Filed 12/08/20 Page 4 of 5
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`Because the Court finds that Plaintiffs waived their argument, it does not address the
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`merits of their argument. It does note, however, that it is not obvious that DoorDash interfered
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`with the administration of justice in this case by rolling out the November 2019 ICA without
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`notifying Plaintiffs. See Hoffmann-La Roche v. Sperling, 493 U.S. 165, 171 (1989) (indicating
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`that, in a collective action, just as in a class action, a court has the duty and authority to enter
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`appropriate orders governing the conduct of counsel and the parties); cf. In re Apple Inc. Device
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`Performance Litig., No. 18-md-02827-EJD, 2018 U.S. Dist. LEXIS 177085, at *44 (N.D. Cal.
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`Oct. 15, 2018) (in a class action, stating that “[c]ommunications that are misleading pose a threat
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`to the fairness of the litigation process, the adequacy of representation and the administration of
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`justice,” and so “a court may take action to cure inaccurate, confusing or misleading
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`communications”). There was nothing obviously misleading about the November 2019 ICA.
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`Furthermore, even if the November 2019 ICA were to be invalidated, that would not invalidate
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`prior ICAs that also contained arbitration agreements (albeit under the auspices of AAA instead of
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`CPR). Arbitration would still be compelled although under a different procedure. There is no
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`assertion that there are any class members who opted out of an earlier arbitration agreement but
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`were ensnarled into the November 2019 ICA.
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`As to Plaintiffs’ second argument, the Court rejects it on the merits. According to
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`Plaintiffs, the Court’s order compelling all opt-ins to arbitration except for those who validly opted
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`out was in error because DoorDash asked the Court to compel to arbitration only
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`2,662 individuals out of the current total of approximately 3,256
`Opt-In Plaintiffs. Furthermore, Defendant’s Motion to Compel
`Arbitration was filed before hundreds of individuals (if not
`thousands) had opted into this case. Defendant cannot simply rope-
`in later-filed Opt-In Plaintiffs after the fact, depriving them of the
`opportunity to respond to DoorDash’s motion. . . . [These
`individuals] are entitled to due process and the right to respond to a
`motion to compel them to arbitration.
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`Mot. at 10-11. Plaintiffs’ position lacks merit because, as DoorDash points out, it never limited its
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`opposition would have been late (by one day).
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`Case 3:19-cv-05279-EMC Document 208 Filed 12/08/20 Page 5 of 5
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`arbitration motion to some subset of the opt-ins. Rather, DoorDash sought an order “compelling
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`arbitration on an individual basis of the claims of each Opt-In Plaintiff.” Docket No. 116 (Mot. at
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`2). Furthermore, there would not appear to be a due process concern unless Plaintiffs can
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`articulate a reason why individuals who opted in after DoorDash filed its motion to compel should
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`be treated differently. Plaintiffs have not articulated a reason.
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`II.
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`CONCLUSION
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`For the foregoing reasons, the Court denies Plaintiffs’ motion for reconsideration.
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`This order disposes of Docket No. 200.
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`IT IS SO ORDERED.
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`Dated: December 8, 2020
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`______________________________________
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`EDWARD M. CHEN
`United States District Judge
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