Jones v. TireHub, LLC ( 2021 )

1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 EASTERN DISTRICT OF CALIFORNIA 11 12 DONSHEA JONES, individually No. 2:21-cv-00564-JAM-DB and on behalf of all others 13 similarly situated, 14 Plaintiff, ORDER GRANTING DEFENDANT’S MOTION TO DISMISS 15 v. 16 TIREHUB, LLC, 17 Defendant. 18 19 Donshea Jones (“Plaintiff”) brings this putative wage and 20 hour class action against Tirehub, LLC (“Defendant”). See First 21 Am. Compl. (“FAC”), ECF No. 7. Defendant moves to dismiss the 22 FAC for failure to state a claim and for failure to plead 23 exhaustion of administrative remedies under the Private Attorneys 24 General Act (“PAGA”), Cal. Labor Code § 2699, et seq. See Mot. 25 to Dismiss (“Mot.”), ECF No. 10. In the alternative, Defendant 26 moves for a more definitive statement under Federal Rule of Civil 27 Procedure 12(e). Id. Plaintiff filed an opposition, see Opp’n, 28 ECF No. 15, to which Defendant replied, see Reply, ECF No. 18. 1 For the reasons set forth below, the Court GRANTS Defendant’s 2 Motion to Dismiss.1 3 4 I. BACKGROUND 5 Defendant operates a national chain of tire distribution 6 centers which provide Bridgestone and Goodyear tires to tire and 7 automotive retailers. FAC ¶¶ 8,17. Plaintiff worked at one of 8 Defendant’s California centers as a driver and material handler 9 between November 1, 2020 and March 30, 2021. Id. ¶¶ 4, 8. 10 On February 10, 2021, Plaintiff filed this action in Solano 11 County Superior Court alleging violations of the California Labor 12 Code and California Business & Professions Code. See Not. of 13 Removal at ¶ 2, EFC No. 1. On March 26, 2021, Defendant removed 14 the action under the Class Action Fairness Act of 2005 (“CAFA”), 15 28 U.S.C. § 1332(d). Id. ¶ 1. Pursuant to a stipulation, see 16 Stip, ECF No. 6, Plaintiff filed an amended complaint on May 4, 17 2021. See FAC. 18 Plaintiff asserts the following state law claims against 19 Defendant: (1) unlawful failure to pay wages in violation of Cal. 20 Lab. Code §§ 200-204, 510, 558, 1194, 1198; (2) failure to 21 provide meal and rest periods in violation of Cal. Labor Code 22 §§ 226.7, 512; (3) failure to provide accurate itemized wage 23 statements in violation of Cal. Lab. Code §§ 226, 1174; 24 (4) failure to pay wages on termination in violation of Cal. Lab. 25 Code § 203; (5) unlawful business practices under California’s 26 27 1 This motion was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearing was 28 scheduled for July 6, 2021. 1 Unfair Competition Law (“UCL”), Cal. Bus. & Prof. Code §§ 17200- 2 17208; and (6) a PAGA claim. Id. ¶¶ 35-89. Plaintiff seeks 3 monetary, declaratory, and injunctive relief. Id. at 18-19. 4 5 II. OPINION 6 A. Legal Standard 7 A Rule 12(b)(6) motion challenges the complaint as not 8 alleging sufficient facts to state a claim for relief. See Fed. 9 R. Civ. P. 12(b)(6). “To survive a motion to dismiss [under 10 12(b)(6)], a complaint must contain sufficient factual matter, 11 accepted as true, to state a claim to relief that is plausible on 12 its face.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (internal 13 quotation marks and citation omitted). At this stage, the court 14 “must accept as true all of the allegations contained in a 15 complaint.” Id. at 678. But it need not “accept as true a legal 16 conclusion couched as a factual allegation.” Id. 17 B. Analysis 18 1. PAGA Claim 19 Defendant first moves to dismiss the PAGA claim, arguing 20 Plaintiff failed to plead compliance with PAGA’s administrative 21 notice requirements. Mot. at 5-6; Reply 1-3. 22 California Labor Code Section 2699.3 requires that prior to 23 commencing a civil suit, an aggrieved employee or representative 24 must provide written notice to the Labor and Workforce 25 Development Agency (“LWDA”) through online filing and to the 26 employer by certified mail. Cal. Lab. Code § 2699.3(a)(1). The 27 written notice must include “the specific provisions of [the 28 Labor Code] alleged to have been violated, including the facts 1 and theories to support the alleged violation.” Id. The Ninth 2 Circuit has specified that “a string of legal conclusions with no 3 factual allegations or theories of liability to support them” is 4 insufficient to provide notice to either the LWDA or to an 5 employer. Alcantar v. Hobart Service, 800 F.3d 1047, 1057 (9th 6 Cir. 2015). 7 Here, Plaintiff did not attach a copy of his PAGA notice 8 letter to the complaint. See FAC. Instead, Plaintiff contends 9 he substantively pled compliance. Opp’n at 3-4. His allegations 10 are as follows: “Representative Plaintiff Donshea Jones has 11 complied with the procedures necessary to maintain a civil action 12 against Defendant for violation of California’s Private Attorneys 13 General Act, as specified in California Labor Code § 2699.3.” 14 Id. ¶ 33. “On February 10, 2021, Representative Plaintiff 15 Donshea Jones served and filed a notice upon the California Labor 16 and Workforce Development Agency (“LWDA”) and Defendant in 17 compliance with Labor Code §§ 2699, et seq.” Id. ¶ 34. “As set 18 forth above, Representative Plaintiff has met all of the 19 requirements set forth in California Labor Code § 2699.3 20 necessary to maintain a civil action against Defendant for 21 violations of (and/or recovery on behalf of the State of 22 California under) California’s Private Attorneys General Act.” 23 Id. ¶ 87. 24 Defendant argues these allegations are insufficient to show 25 compliance with the PAGA notice requirements under this Court’s 26 decision in Krauss v. Wal-Mart Inc, No. 2:19-cv-00838-JAM-DB, 27 2020 WL 1874072, at *8-9 (E.D. Cal. Apr. 15, 2020). Mot. at 6. 28 In Kraus, the plaintiff similarly did not attach a copy of the 1 PAGA notice letter and provided bare-bones allegations in her 2 complaint. 2020 WL 1874072, at *8. The Court dismissed 3 plaintiff’s PAGA claim, explaining that “without including the 4 facts and theories Plaintiff provided to LWDA in her complaint, 5 the Court cannot independently conclude that she has satisfied 6 the requirements of the statute as a matter of law.” Id. at *9 7 (internal citation and quotation marks omitted). 8 Plaintiff counters that Krauss is distinguishable “because 9 Plaintiff has provided this court with a copy of his LWDA letter” 10 as an exhibit to the opposition brief and because “the facts and 11 theories provided to the LWDA were integrated into [the] FAC.” 12 Opp’n at 3. Both of these arguments fail. First, the facts and 13 theories provided to the LWDA were not integrated into the FAC: 14 Plaintiff did not allege what the contents of his PAGA notice 15 letter were including what facts and theories supported his 16 claim; instead, Plaintiff merely pleads in conclusory terms that 17 he “complied.” FAC ¶¶ 33, 34, 87; see also Opp’n at 3-4 18 (referring the Court to FAC ¶¶ 15, 59, 60, 61). Thus, as in 19 Krauss, the Court “cannot independently conclude that [Plaintiff] 20 has satisfied the requirements of the statute as a matter of 21 law.” 2020 WL 1874072, at *9. 22 Second, Plaintiff attempts to demonstrate compliance through 23 an unauthorized introduction of extrinsic evidence beyond the 24 allegations in the FAC. See Ex. A to Van Note Decl., ECF No. 16- 25 1; see also Opp’n at 3. Plaintiff acknowledges the well-settled 26 rule that in deciding motions to dismiss, courts “consider only 27 the facts alleged in the complaint and in any documents appended 28 thereto.” Opp’n at 5; see also Airpin v. Santa Clara Valley 1 Transp. Agency, 261 F.3d 912, 925 (9th Cir. 2001) (“extraneous 2 evidence should not be considered in ruling on a motion to 3 dismiss”). Applying this rule, the Court may not consider 4 Plaintiff’s Exhibit A – which is not appended to the complaint 5 but rather to the opposition brief - in its analysis. 6 Accordingly, the Court finds Plaintiff has not pled 7 compliance with PAGA’s notice requirements and dismisses 8 Plaintiff’s PAGA claim. 9 2. Remaining Claims 10 Plaintiff also asserts claims for unlawful failure to pay 11 wages, failure to provide meal and rest periods, failure to 12 provide accurate itemized wage statements, failure to pay wages 13 on termination, and unlawful business practices under the UCL. 14 FAC. ¶¶ 35-82. Defendant contends all of these claims should be 15 dismissed because the FAC is devoid of factual allegations and 16 simply recites the elements of each claim. Mot. at 7-14; Reply 17 at 3-4. The Court agrees and finds the FAC falls well short of 18 what is required under Iqbal, Bell Atlantic Corp. v. Twombly, 19 550 U.S. 544, 555 (2007), and Landers v. Quality Communications, 20 Inc., 771 F.3d 638, 644 (9th Cir. 2014). 21 Plaintiff contends, see Opp’n at 5-6, that the following 22 allegations contain sufficient factual matter to support his 23 remaining claims: 24 • That he “worked more than forty hours per week between 25 November 1, 2020 and March 30, 2021 without being 26 properly compensated,” FAC ¶ 37; 27 • That he “suffered one or more meal and/or rest break 28 violations between November 1, 2020 and March 30, 1 2021,” id. ¶ 57; 2 • That the “average length of [his] workweek was, at 3 minimum, forty hours,” id. ¶ 38; 4 • That his “average workday consisted of, at minimum, 5 eight hours,” id. ¶ 58, with an “average rate of pay 6 of $19.00,” id. ¶ 39; 7 • That he and other class members were denied the meal 8 and/or rest breaks due to “Defendant’s policies of: 9 (1) not scheduling a meal or rest period as a part of 10 Representative Plaintiff’s and putative litigants’ 11 work shift, (2) not allowing employees to take meal 12 and rest periods until they were released by 13 supervisors, and (3) scheduling employees in a manner 14 that made it difficult to enjoy timely, full and 15 uninterrupted meal and/or rest periods because 16 required tasks could be completed if breaks were 17 taken,” id. ¶ 59; 18 • That on many occasions he and other class members 19 remained “on call” and “were compelled to wait well 20 beyond the fifth hour to take their meal breaks,” id.; 21 • That he was prevented from taking breaks as a result 22 of “Defendant’s routine practice of failing to provide 23 adequate staffing such that Plaintiff was not relieved 24 from duty to take breaks,” id. ¶ 62, 25 • That Defendant prohibited overtime such that he had to 26 “forgo breaks to fulfill employment obligations and 27 responsibilities within the allotted time,” id. ¶ 63; 28 • That he and others were further precluded from taking 1 their breaks because “Defendant maintained a policy 2 that permitted only one rest period during an eight- 3 hour shift, which instructed employees that they were 4 not permitted a second rest period,” id. ¶ 60; 5 • That Defendant “affirmatively informed employees that 6 they were not entitled to breaks required under the 7 California Labor Code,” id. ¶ 61. 8 These allegations lack factual specificity. See, e.g., Krauss, 9 2020 WL 1874072, at *2–4 (E.D. Cal. 2020) (dismissing meal and 10 rest break claims along with overtime and minimum wage claims 11 because plaintiff failed to allege “key facts and specific 12 details necessary” to support the claims); Chavez v. RSCR, No. 13 2:18-cv-03137-JAM-AC, 2019 WL 1367812, at *2-4 (same). For 14 instance, Plaintiff does not identify any specific workweek in 15 which he worked in excess of forty hours and was not paid for 16 excess hours or not paid minimum wages. Nor does he identify a 17 particular instance in which he did not receive a compliant meal 18 or rest period. Likewise, Plaintiff has not identified any 19 instance in which he did not receive an itemized wage statement. 20 Finally, the FAC does not contain any facts as to Defendant’s 21 failure to pay wages upon termination. Without these specific 22 factual allegations to support his claims, Plaintiff fails to 23 state plausible claims for unlawful failure to pay wages, 24 failure to provide meal and rest periods, failure to provide 25 accurate itemized wage statements, failure to pay wages on 26 termination, and unlawful business practices under the UCL. See 27 Iqbal, 556 U.S. at 678. 28 /// 1 In short, the lack of specificity precludes the Court from 2 making any plausible inferences about Defendant’s conduct and 3 fails to give Defendant the fair notice necessary to defend 4 itself effectively. See Starr v. Baca, 652 F.3d 1202, 1216 (9th 5 Cir. 2011). 6 Additionally, these allegations fall short of what is 7 required under Landers. See 771 F.3d 638. In Landers, the 8 Ninth Circuit addressed the specificity required for pleading 9 wage and hour claims following Twombly and Iqbal and held that 10 “conclusory allegations that merely recite the statutory 11 language” are inadequate. 771 F.3d at 644. The Ninth Circuit 12 instructed that “at a minimum the plaintiff must allege at least 13 one workweek when he worked in excess of forty hours and was not 14 paid for the excess hours in that workweek, or was not paid 15 minimum wages.” Id. at 646. This Court has twice applied 16 Landers to find that the “failure to plead at least one occasion 17 on which [plaintiffs were] impeded from taking a meal or rest 18 break” warrants dismissal. See Krauss, 2020 WL 1874072, at *3; 19 Chavez, 2019 WL 1367812, at *2. Here, Plaintiff has not 20 specifically pled or identified any such occasions. 21 Lastly, Plaintiff’s UCL claim is predicated on his preceding 22 claims for violations of the California Labor Code. Because 23 Plaintiff has failed to sufficiently plead these underlying 24 claims, his derivative UCL claim necessarily fails and is 25 dismissed. See Porch v. Masterfoods, USA, Inc., 685 F.Supp.2d 26 1058, 1075–76 (explaining that claim of unfair business practices 27 under California law is predicated on at least one legal 28 violation). 1 3. Class Allegations 2 Defendant’s final argument is that the complaint fails to 3 establish entitlement to class relief. Mot. at 13-14. First, 4 Defendant points out that Plaintiff alleges two inconsistent 5 class definitions. Id. at 13 (citing to FAC ¶¶ 20, 24). 6 Further, Plaintiff identifies no commonality between her and the 7 putative class. Id. at 14. Plaintiff did not respond to these 8 arguments. See Opp’n. Therefore, Plaintiff’s class claims are 9 dismissed. 10 C. Leave to Amend 11 Courts dismissing claims under Federal Rule of Civil 12 Procedure 12(b)(6) have discretion to permit amendment, and there 13 is a strong presumption in favor of leave to amend. Eminence 14 Cap., LLC v. Aspeon, Inc., 316 F.3d 1048, 1051-52 (9th Cir. 15 2003). “Dismissal with prejudice and without leave to amend is 16 not appropriate unless it is clear . . . that the complaint could 17 not be saved by amendment.” Id. at 1052 (internal citation 18 omitted). 19 Plaintiff’s request for leave to amend is granted. Opp’n at 20 7. Any amended complaint, however, must contain facts that 21 sufficiently support plausible causes of action. 22 D. Sanctions 23 A violation of the Court’s standing order requires the 24 offending counsel (not the client) to pay $50.00 per page over 25 the page limit to the Clerk of Court. Order re Filing 26 Requirements at 1, ECF No. 2-2. Moreover, the Court does not 27 consider arguments made past the page limit. Id. 28 Defendant’s reply brief exceeds the Court’s page limit by 2 em DEIR IRE EIEIO EOE EIDE IIE IEEE I EEE eee 1 pages. See Reply. Defendant’s counsel must therefore send a 2 check payable to the Clerk for the Eastern District of California 3 for $100.00 no later than seven days from the date of this Order. 4 5 Til. ORDER 6 For the reasons set forth above, the Court GRANTS 7 Defendant’s Motion to Dismiss. If Plaintiff elects to amend his 8 complaint, he shall file a Second Amended Complaint within twenty 9 days (20) of this order. Defendant’s responsive pleading is due 10 twenty days thereafter. 11 IT IS SO ORDERED. 12 Dated: July 27, 2021 13 kA 14 teiren staves odermacr 7008 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11