Myles v. Builders Concrete Inc. ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DAMMION MYLES, an individual, on No. 1:21-cv-01309-DAD-BAK behalf of himself and on behalf of all 12 persons similarly situated, 13 Plaintiff, ORDER GRANTING DEFENDANTS’ MOTION FOR JUDGMENT ON THE 14 v. PLEADINGS 15 BUILDERS CONCRETE, INC., et al., (Doc. No. 11) 16 Defendants. 17 18 This matter is before the court on the motion for judgment on the pleadings filed on behalf 19 of defendants Builders Concrete, Inc. (“Builders”), Concrete Holding Company of California, 20 Inc. (“CHC”), Viking Ready Mix Co., Inc. (“Viking”), and National Ready Mixed Concrete Co. 21 (“NRMC”) on November 17, 2021. (Doc. No. 11.) Pursuant to General Order No. 617 22 addressing the public health emergency posed by the COVID-19 pandemic, the motions were 23 taken under submission on the papers. (Doc. No. 13.) For the reasons explained below, the court 24 will grant defendants’ motion for judgment on the pleadings. 25 BACKGROUND 26 Plaintiff Dammion Myles originally filed a class action complaint in Kern County 27 Superior Court on October 9, 2020, alleging various violations of California’s Labor Code and 28 Unfair Competition Law (UCL). (Doc. No. 1 at 13–53.) On July 28, 2021, plaintiff amended his 1 complaint in state court, adding two claims arising under the federal Fair Credit Reporting Act 2 (FCRA). (Id. at 55–103.) Within 30 days of plaintiff’s amendment, defendants filed answers to 3 the first amended complaint (FAC) in state court and then filed a notice of removal in this federal 4 court. (Id. at 3.) In plaintiff’s operative FAC, he alleges the following. 5 Defendants are “ready mixed concrete supplier[s]” serving the Southern California 6 market. (Doc. No. 11 at 12–60 (the FAC), at ¶ 6.) Plaintiff alleges he was employed by all 7 defendants as an hourly non-exempt employee for approximately two months, from November 8 2019 until January 10, 2020. (Id. at ¶¶ 5, 7.) Specifically, plaintiff alleges that defendants 9 Builders, CHC, Viking, and NRMC “were joint employers,” “[a]s evidenced by [plaintiff’s] 10 paychecks and company documents.” (Id. at ¶ 5.) Plaintiff also alleges that there “existed a unity 11 of interest and ownership between the[] Defendants such that any individuality and separateness 12 between the entities cease[d]” and therefore defendants Builders, CHC, Viking, and NRMC are 13 “alter egos of each other.” (Id.) After alleging that all defendants are alter egos, plaintiff avers 14 that “[a]dherence to the fiction of the separate existence of (sic) would permit an abuse of the 15 corporative privilege, and would promote injustice by protecting . . . [defendants] from liability 16 for the wrongful acts committed by them.” (Id.) Plaintiff does not allege any other facts 17 regarding defendants’ purported alter ego liability or joint employer relationship, except that each 18 defendant is according to plaintiff a California corporation doing business in California. (Id. at ¶¶ 19 1–4.) Plaintiff also defines all four defendants as a singular “defendant” in the FAC, (id. at ¶ 5), 20 and all of plaintiff’s subsequent allegations use the word “defendant” without any differentiation 21 among defendants Builders, CHC, Viking, or NRMC. (See, e.g., id. at ¶ 6.) 22 Approximately three months after the removal of the action to this federal court, on 23 November 17, 2021, defendants filed a motion for judgment on the pleadings contending that no 24 relief can be granted as to any of plaintiff’s causes of action against defendants Viking, CHC, and 25 NRMC because the FAC fails to adequately allege that those entities are joint employers or alter 26 egos of defendant Builders, plaintiff’s actual purported employer. (Doc. No. 11.) Plaintiff filed 27 an opposition to the pending motion, arguing that (i) the joint employer and alter ego allegations 28 in the FAC are sufficient; (ii) defendants cannot attack a portion of a cause of action; and (iii) 1 group allegations regarding all four defendants are permitted. (Doc. No. 14.) Defendants filed a 2 reply to plaintiff’s opposition. (Doc. No. 15.) 3 LEGAL STANDARD 4 Federal Rule of Civil Procedure 12(c) provides that: “After the pleadings are closed––but 5 early enough not to delay trial––a party may move for judgment on the pleadings.” A motion for 6 judgment on the pleadings “challenges the legal sufficiency of the opposing party’s pleadings[.]” 7 Morgan v. County of Yolo, 436 F. Supp. 2d 1152, 1154–55 (E.D. Cal. 2006), aff’d, 277 F. App’x 8 734 (9th Cir. 2008). In reviewing a motion brought under Rule 12(c), the court “must accept all 9 factual allegations in the complaint as true and construe them in the light most favorable to the 10 nonmoving party.” Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir. 2009). 11 The same legal standard applicable to a Rule 12(b)(6) motion applies to a motion brought 12 under Rule 12(c). See Dworkin v. Hustler Magazine, Inc., 867 F.2d 1188, 1192 (9th Cir. 1989). 13 Accordingly, “judgment on the pleadings is properly granted when, taking all the allegations in 14 the non-moving party’s pleadings as true, the moving party is entitled to judgment as a matter of 15 law.” Marshall Naify Revocable Trust v. United States, 672 F.3d 620, 623 (9th Cir. 2012) 16 (quoting Fajardo v. County of Los Angeles, 179 F.3d 698, 699 (9th Cir. 1999)); see also Fleming, 17 581 F.3d at 925 (stating that “judgment on the pleadings is properly granted when there is no 18 issue of material fact in dispute, and the moving party is entitled to judgment as a matter of law”). 19 The allegations of the complaint must be accepted as true, while any allegations made by the 20 moving party that contradict the allegations of the complaint are assumed to be false. See 21 MacDonald v. Grace Church Seattle, 457 F.3d 1079, 1081 (9th Cir. 2006). The facts are viewed 22 in the light most favorable to the non-moving party and all reasonable inferences are drawn in 23 favor of that party. See Living Designs, Inc. v. E.I. DuPont de Nemours & Co., 431 F.3d 353, 360 24 (9th Cir. 2005). 25 ANALYSIS 26 A. Failure to Allege Joint Employer Liability 27 Whether the FAC sufficiently alleges that defendants are joint employers implicates state 28 law as to plaintiff’s California Labor Code claims and federal law as to plaintiff’s FCRA claim. 1 To be held liable for any violations under the California Labor Code, defendants must be 2 plaintiff’s employer.1 Lesnik v. Eisenmann SE, 374 F. Supp. 3d 923, 947 (N.D. Cal. 2019). 3 “California courts rely on the definitions provided in California’s Industrial Welfare 4 Commission’s (‘IWC’) wage orders in determining whether an employment relationship exists.” 5 Rodriguez v. SGLC, Inc., No. 2:08-cv-01971-MCE-KJN, 2012 WL 5704403, at *12 (E.D. Cal. 6 Nov. 15, 2012). Under the IWC’s wage orders, “[t]o employ . . . has three alternative definitions. 7 It means: (a) to exercise control over wages, hours or working conditions, or (b) to suffer or 8 permit to work, or (c) to engage, thereby creating a common law employment relationship.” 9 Martinez v. Combs, 49 Cal. 4th 35, 64 (2010). 10 Because the FCRA does not provide a definition of “employer,” the court will rely on the 11 definition provided by the Fair Labor Standards Act (FLSA). See Berrellez v. Pontoon Sols., Inc., 12 No. 2:15-cv-01898-CAS-FFM, 2016 WL 5947221, at *8 (C.D. Cal. Oct. 13, 2016), aff’d, 775 F. 13 App’x 357 (9th Cir. 2019). To determine whether a joint employer relationship exists under the 14 FLSA, courts in the Ninth Circuit use a four-part “economic reality” test that evaluates whether 15 an entity: “(1) had the power to hire and fire the employees, (2) supervised and controlled 16 employee work schedules or conditions of employment, (3) determined the rate and method of 17 payment, and (4) maintained employment records.” Lesnik, 374 F. Supp. 3d at 942 (quoting 18 Bonnette v. Cal. Health & Welfare Agency, 704 F.2d 1465, 1470 (9th Cir. 1983), abrogated on 19 other grounds by Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985)). 20 “While [the] plaintiff is not required to conclusively establish that defendants were her 21 joint employers at the pleading stage, [the] plaintiff must at least allege some facts in support of 22 this legal conclusion.” Haralson v. United Airlines, Inc., 224 F. Supp. 3d 928, 939 (N.D. Cal. 23 2016); Lesnik, 374 F. Supp. 3d at 942 (same under federal law); see also Perez v. DNC Parks & 24 Resorts at Asilomar, Inc., No. 1:19-cv-00484-DAD-SAB, 2019 WL 5618169, at *7 (E.D. Cal. 25 Oct. 31, 2019) (“To make a plausible joint employer claim, plaintiff must allege some specific 26 1 Plaintiff’s UCL claim is derivative of his asserted violations of California’s Labor Code. (See 27 FAC at ¶¶ 66, 70.) Thus, if plaintiff’s claims for violations of California’s Labor Code fail because defendants CHC, Viking, and NRMC are not plaintiff’s joint employers with defendant 28 Builders, then plaintiff’s UCL claim will fail too. 1 facts such as whether defendant pays the employee’s salary and taxes, owns the equipment 2 necessary for the employee to perform his job, has authority to hire, train, fire, or discipline the 3 employee, or has discretion to set the employee’s salary.”) (internal quotations omitted). 4 In their pending motion, defendants contend that plaintiff’s FAC fails to allege any facts 5 suggesting that all the defendants in question are joint employers of plaintiff, and that a mere 6 reference to “as evidenced by [plaintiff’s] paychecks and company documents” is an insufficient 7 basis upon which to claim otherwise. (Id. at 8) (citing Sandoval v. Ali, 34 F. Supp. 3d 1031, 8 1040–41 (N.D. Cal. 2014)). 9 In opposition, plaintiff argues that the following allegations adequately allege a joint 10 employer relationship between the defendants at issue: (i) defendants all operated in California 11 (FAC at ¶¶ 1–4); (ii) defendants shared a “unity of interest” (id. at ¶ 5); (iii) defendants were 12 “alter egos of each other” such that “adherence to the fiction of the separate existence of (sic) 13 would permit an abuse of the corporative privilege” (id.); (iv) defendants were in the same line of 14 work (“ready mix concrete supplier”) (id. at ¶ 6); (v) joint employment is “evidenced by 15 [plaintiff’s] paychecks and company documents” (id. at ¶ 5); (vi) defendants “required [plaintiff] 16 and [putative class members] to work without paying them for all the time they were under 17 [defendants’] control” (id. at ¶ 22). (Doc. No. 14 at 16) (citing Haralson, 224 F. Supp. 3d at 18 939). 19 In reply, defendants argue that that plaintiff misconstrues the federal pleading standard in 20 the context of pleading a joint employer relationship and that the court is not required to accept as 21 true legal conclusions that are cast in the form of factual allegations, as plaintiff does here. (Doc. 22 No. 15 at 5.) 23 The court finds that plaintiff has not alleged sufficient facts supporting his alleged legal 24 conclusion that all four defendants were his joint employers. Plaintiff does not allege any facts 25 regarding the relationship between himself and defendants Builders, CHC, Viking, and NRMC, 26 or how each of these different entities, for instance, exercised control over his wages, hours, or 27 working conditions. See Martinez, 49 Cal. 4th at 64. Nor has plaintiff alleged facts satisfying 28 one of the other alternative definitions of employment under Martinez—i.e., some facts 1 suggesting plaintiff suffered or was permitted to work vis-à-vis each defendant, or that plaintiff 2 was engaged in work by each defendant. See id. Likewise, plaintiff’s FAC does not allege any 3 other facts, or even legal conclusions, supporting a showing with respect to any of the four factors 4 enumerated in the Ninth Circuit’s economic realities test. See Lesnik, 374 F. Supp. 3d at 942. 5 In fact, the allegations of plaintiff’s FAC regarding the four defendants “are entirely 6 undifferentiated.” Terrell v. Samuel, Son & Co. (USA), No. 5:20-cv-00587-JGB-KK, 2020 WL 7 5372107, at *3 (C.D. Cal. Apr. 23, 2020); see also Johnson v. Serenity Transportation, Inc., 141 8 F. Supp. 3d 974, 990 (N.D. Cal. 2015) (“[A] plaintiff seeking to hold multiple entities liable as 9 joint employers must plead specific facts that explain how the defendants are related and how the 10 conduct underlying the claims is attributable to each defendant.”). Here, all four entities are 11 merely referred to by plaintiff as one “defendant” throughout the entirety of the FAC and there is 12 no attempt to allege specific facts stating how each of the four defendants employed plaintiff. 13 (FAC at ¶ 5.) The allegations of the FAC that plaintiff highlighted in his opposition to the 14 pending motion are almost all legal conclusions, which the court is not required to accept as true. 15 See In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1057 (9th Cir. 2008). The only supporting facts 16 that plaintiff highlights are that defendants are all in the same line of business, operate in 17 California, and that the supposed joint employer relationship is “evidenced by [plaintiff’s] 18 paychecks and company documents.” (FAC at ¶ 5.) But plaintiff does not allege in what way 19 those paychecks and company documents make it plausible that defendants are all joint 20 employers, or how merely operating in California in the same line of business makes it plausible 21 that the four defendants are joint employers. Absent some further allegations, there is no 22 inference to be drawn from the allegations supporting plaintiff’s legal conclusion. Courts 23 confronted with similarly conclusory allegations of a joint employer relationship between 24 defendant entities that are devoid of supporting facts have found such allegations to be 25 insufficient. See, e.g., Haralson, 224 F. Supp. 3d at 939–40 (finding the lone allegation that 26 “Plaintiff was supervised and/or managed by United employees” insufficient to assert that United 27 had a joint employer relationship over plaintiff who was an employee of aircraft cleaning 28 service); Lesnik, 374 F. Supp. 3d at 947–50 (finding allegations that a defendant entity had 1 influence over plaintiff’s wages through contracts with plaintiff’s direct employer to be an 2 insufficient basis upon which to assert a joint employer relationship); Perez, 2019 WL 5618169, 3 at *7 (finding that where the plaintiff made only “conclusory allegation[s] that all seven 4 defendants are his joint employer,” without any “supporting facts,” the allegations were 5 insufficient to state a joint employer claim). 6 Plaintiff advances a few additional arguments in opposition to the pending motion that 7 also lack merit. First, plaintiff argues that the pending motion is “inherently flawed” because 8 defendants are only attacking “a portion of Plaintiff’s causes of action.” (Doc. No. 14 at 6) 9 (citing Pointe San Diego Residential Cmty., L.P. v. Procopio, Cory, Hargreaves & Savitch, LLP, 10 195 Cal. App. 4th 265, 274 (2011)). This argument is far afield. Not only does plaintiff 11 erroneously cite California procedural law, but in the pending motion defendants are challenging 12 whether plaintiff can assert any of his causes of action against defendants CHC, Viking, and 13 NRMC. (See Doc. No. 11 at 5) (defendants CHC, Viking, and NRM requesting the court to 14 dismiss “the entire action against each of them with prejudice”). Thus, plaintiff misstates the 15 nature of defendants pending motion, which is to test the sufficiency of the FAC as to defendants 16 CHC, Viking, and NRMS. That is the proper function of a motion for judgment on the pleadings. 17 See Perez v. Wells Fargo & Co., 75 F. Supp. 3d 1184, 1187 (N.D. Cal. 2014) (“A motion for 18 judgment on the pleadings ‘challenges the legal sufficiency of the opposing party’s pleadings.’”). 19 Second, plaintiff argues that “group pleading is not fatal to a complaint if the complaint 20 still gives defendants fair notice of the claims against them.” (Doc. No. 14 at 13) (quoting Tivoli 21 LLC v. Sankey, No. 8:14-cv-01285-DOC-JCG, 2015 WL 12683801, at *3–4 (C.D. Cal. Feb. 3, 22 2015)). However, plaintiff’s reliance on group pleading cases that do not involve allegations of 23 joint employer (or alter ego) liability is misplaced. See, e.g., United States ex rel. Anita Silingo v. 24 WellPoint, Inc., 904 F.3d 667, 677 (9th Cir. 2018) (noting, in the context of Rule 9(b)’s pleading 25 requirements for a qui tam action brought under the federal False Claims Act, that “a complaint 26 need not distinguish between defendants that had the exact same role in a fraud”); Tivoli, 2015 27 WL 12683801 at *3–4 (finding that pleading four defendants as a group in a breach of contract 28 and trade secretes action was permissible where the complaint “explain[ed] in sufficient detail 1 each entity’s allegedly culpable conduct”). Although group pleading is permissible in some 2 instances, plaintiff has cited no authority for the proposition that such pleading is permissible 3 when asserting a cause of action based upon joint employer (or alter ego) liability. See E.E.O.C. 4 v. La Rana Hawaii, LLC, 888 F. Supp. 2d 1019, 1046 (D. Haw. 2012) (finding that the plaintiff 5 could not group together defendants in pleading “theory of joint employer liability” under federal 6 law and instead “must allege facts sufficient to [show how each defendant] controlled the terms 7 and conditions” of the plaintiff’s employment); Horton v. NeoStrata Co. Inc., No. 3:16-cv-02189- 8 AJB-JLB, 2016 WL 11622008, at *3 (S.D. Cal. Nov. 22, 2016) (rejecting group pleading in the 9 context of conclusory alter ego liability allegations); Terrell, 2020 WL 5372107, at *3 (rejecting 10 group pleading of joint employers because the plaintiff’s allegations were “entirely devoid of the 11 necessary differentiation between Defendants to determine ‘the totality of the working 12 relationship of the parties,’” among other reasons). 13 Moreover, as discussed elsewhere in this order, plaintiff’s assertion that the court must 14 accept his allegations as true and that they provide fair notice of his claim to the named 15 defendants is incorrect. (Doc. No. 14 at 6, 12–13.) Fair notice to defendants is not provided with 16 a bare recitation of the elements of a cause of action; fair notice requires some allegations of 17 underlying facts so that defendants can defend themselves effectively. See Starr v. Baca, 652 18 F.3d 1202, 1216 (9th Cir. 2011). Likewise, “the tenet that a court must accept as true all of the 19 allegations contained in a complaint is inapplicable to legal conclusions,” Ashcroft v. Iqbal, 556 20 U.S. 662, 678 (2009), such as the ones made by plaintiff here regarding joint employer (and, 21 below, alter ego) liability. See id. at 664 (“While legal conclusions can provide the complaint's 22 framework, they must be supported by factual allegations.”). Thus, even if group pleading could 23 be permissible here, plaintiff’s bare legal conclusions that lack any supporting factual allegations 24 do not provide adequate notice to the named defendants. 25 ///// 26 ///// 27 ///// 28 ///// 1 For the above reasons, the court concludes that plaintiff’s allegations that there was a joint 2 employer relationship between all four defendants and plaintiff are insufficiently pled.2 3 B. Failure to Allege Alter Ego Liability 4 “The alter ego doctrine arises when a plaintiff comes into court claiming that an opposing 5 party is using the corporate form unjustly and in derogation of the plaintiff’s interests. In certain 6 circumstances the court will disregard the corporate entity and will hold the individual 7 shareholders liable for the actions of the corporation[.]” Mesler v. Bragg Mgmt. Co., 39 Cal. 3d 8 290, 300 (1985) (internal citations omitted). “[A]lter ego liability depends on both: (1) such 9 unity of interest and ownership that the separate personalities of the corporation and the 10 individual no longer exist, and (2) adherence to the fiction of separate existence would, under the 11 circumstances, promote fraud or injustice.” Ming-Hsiang Kao v. Holiday, 58 Cal. App. 5th 199, 12 205 (2020) (internal quotations omitted). A non-exhaustive list of factors that courts may 13 consider “when deciding unity of interest and whether the fiction of a separate existence would 14 promote fraud and injustice,” include: (i) commingling of funds and other assets; (ii) treatment 15 by an individual of the assets of the corporation as his own; (iii) the failure to maintain adequate 16 corporate record; (iv) sole ownership of all of the stock in a corporation by the members of a 17 family; (v) the use of a corporation as a mere shell, instrumentality or conduit for a single venture 18 or the business of an individual; (vi) the concealment of personal business activities; (vii) the use 19 of the corporate entity to procure labor, services or merchandise for another person or entity; or 20 (viii) the use of a corporation as a subterfuge of illegal transactions. Id. at 206; see also 21 Greenspan v. LADT, LLC, 191 Cal. App. 4th 486, 512–13 (2010) (noting that “[t]he alter ego test 22 encompasses a host of factors” and listing fourteen different factors). 23 “To properly plead an alter ego cause of action, a plaintiff must plead the elements of alter 24 ego and factors in support of those elements.” Daewoo Elecs. Am. Inc. v. Opta Corp., No. 3:13- 25 2 Defendants agree that plaintiff was employed by defendant Builders. (Doc. No. 11 at 5) (stating that plaintiff “brings the present action[] . . . against his former employer [defendant] 26 Builders” and that plaintiff “worked for Builders as a driver for approximately two months”). 27 Thus, the court’s conclusion that there are insufficient allegations of a joint employer relationship does not have any impact upon the sufficiency of plaintiff’s allegations in support of his claims 28 brought against defendant Builders. 1 cv-01247 JSW, 2013 WL 3877596, at *5 (N.D. Cal. July 25, 2013). However, “[c]onclusory 2 allegations of ‘alter ego’ status are insufficient to state a claim. Rather, a plaintiff must allege 3 specifically both of the elements of alter ego liability, as well as facts supporting each.” Neilson 4 v. Union Bank of California, N.A., 290 F. Supp. 2d 1101, 1116 (C.D. Cal. 2003). 5 The court concludes that plaintiff has not alleged sufficient facts supporting his asserted 6 legal conclusion that all defendants were or are alter egos of each other.3 In fact, plaintiff has 7 done nothing more than recite the two elements of alter ego liability without any supporting 8 factual allegations. (See FAC at ¶ 5 (alleging “there has existed a unity of interest and ownership 9 between these Defendants such that any individuality and separateness between the entities has 10 ceased,” defendants “are therefore alter egos of each other,” and “[a]dherence to the fiction of the 11 separate existence of (sic) would permit an abuse of the corporative privilege, and would promote 12 injustice by protecting . . . [defendants] from liability for the wrongful acts committed by them”).) 13 Plaintiff does not even allege any of the factors—let alone facts supporting those factors—that 14 courts are to consider in determining if the two elements of alter ego liability can be established. 15 See Daewoo, 2013 WL 3877596, at *5. Because in opposing the pending motion plaintiff has 16 been unable to identify any other allegations in his FAC that could state the basis for a plausible 17 claim of alter ego liability, the court concludes that plaintiff’s alter ego claims as to all four 18 moving defendants are insufficiently pled. See Sandoval, 34 F. Supp. 3d at 1040–141 (dismissing 19 alter ego claims because the plaintiff’s alter ego allegations, which were a mere recitation of the 20 elements and some unity of interest factors but without supporting facts, were “too conclusory to 21 survive a motion to dismiss”); Dakavia Mgmt. Corp. v. Bigelow, No. 1:20-cv-00448-NONE- 22 SKO, 2022 WL 104245, at *6 (E.D. Cal. Jan. 10, 2022) (finding that even when some factual 23 allegations were sufficient to establish one factor regarding identical ownership it was still 24 3 Though some courts have discussed the application of Rule 9(b) pleading standards to 25 allegations of alter ego liability, see, e.g., Wimbledon Fund, SPC v. Graybox, LLC, No. 2:15-cv- 06633-CAS-AJW, 2016 WL 7444709, at *5 (C.D. Cal. Aug. 31, 2016), the court will apply the 26 Rule 8(a) pleading standard here because the parties have not argued otherwise. (See Doc. Nos. 27 11 at 8 (defendants arguing that “[t]o satisfy the pleading requirement set forth in Rule 8(a)(2) . . . .”); 14 at 11 (plaintiff arguing that “each cause of action clearly meets the Iqbal/Twombly and 28 FRCP Rule 8 federal pleading standards”).) 1 “insufficient to support alter-ego liability”).4 2 Accordingly, because plaintiff’s joint employer and alter ego allegations are insufficiently 3 pled, plaintiff has failed to state any claims against defendants CHC, Viking, and NRMC. 4 Therefore, defendants’ motion for judgment on the pleadings will be granted as to those 5 defendants. 6 C. Leave to Amend 7 Having determined that defendants’ pending motion will be granted, the court must 8 determine whether plaintiff will be granted leave to file a second amended complaint. 9 Courts have discretion both to grant a motion for judgment on the pleadings with leave to 10 amend or to simply grant dismissal of causes of action rather than grant judgment as to them. 11 Lonberg v. City of Riverside, 300 F. Supp. 2d 942, 945 (C.D. Cal. 2004) (citations omitted); see 12 also Pac. W. Grp. v. Real Time Sols., Inc., 321 Fed. App’x 566, 569 (9th Cir. 2008).5 Generally, 13 dismissal without leave to amend is proper only if it is clear that “the complaint could not be 14 saved by any amendment.” Intri-Plex Techs. v. Crest Grp., 499 F.3d 1048, 1056 (9th Cir. 2007) 15 (citing In re Daou Sys., Inc., 411 F.3d 1006, 1013 (9th Cir. 2005)); see also Ascon Props., Inc. v. 16 Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 1989) (“Leave need not be granted where the 17 amendment of the complaint . . . constitutes an exercise in futility”). 18 Although plaintiff requests leave to amend (Doc. No. 14 at 18), defendants argue that 19 plaintiff should not be given a “fourth” attempt to allege sufficient facts to assert claims based 20 upon theories of joint employer and alter ego liability. (Doc. No. 15 at 8.) Because plaintiff has 21 not done so already, defendants argue, it would be futile to give plaintiff another opportunity to 22 make sufficient factual allegations. (Id.) 23 ///// 24 4 Because plaintiff does not advance any arguments in opposition to the pending motion as to his 25 alter ego based claims different from those presented as to his claims brought under a joint employer theory of liability, the court’s analysis of plaintiff’s arguments in the context of joint 26 employer liability also apply in the context of alter ego liability. 27 5 Citation to this unpublished Ninth Circuit opinion is appropriate pursuant to Ninth Circuit Rule 28 36-3(b). 1 The court is not persuaded by defendants’ argument in this regard. The complaint in this 2 | action has only been amended once, and that amendment occurred when the action was pending 3 | in state court. (Doc. No. | at 6.) Because of the different state and federal court pleading 4 | standards, plaintiff should be given an opportunity to remedy the deficiencies identified in this 5 | order and to attempt to allege sufficient facts supporting claims against defendants CHC, Viking, 6 | and NRMC. Under these circumstances, the court cannot conclude that the granting of leave to 7 | amend would be futile, nor have defendants even asserted that allowing an amendment would be 8 || prejudicial, cause undue delay, or that plaintiff has acted in bad faith. See California 9 | Architectural Bldg. Prod. v. Franciscan Ceramics, 818 F.2d 1466, 1472 (9th Cir. 1987). Thus, 10 | plaintiff will be granted leave to file a second amended complaint if he is able to do so in good 11 | faith. See Fed. R. Civ. P. 15(a)(2). 12 CONCLUSION 13 Accordingly, defendants’ motion for judgment on the pleadings (Doc. No. 11) is granted. 14 | Any second amended complaint that plaintiff may elect to file shall be filed within twenty-one 15 | (21) days of service of this order. 16 | IT IS SO ORDERED. me □ Dated: _ June 27, 2022 Yole A Lange 18 UNITED STATES DISTRICT JUDGE 19 20 21 22 23 24 25 26 27 28 12