Celena King vs. Great American Chicken Corp., Inc et al

NOTICE OF MOTION AND MOTION to Dismiss Third Amended Complaint ; Memorandum of Points and Authorities; Fed. R. Civ. P. 12

C.D. Cal.November 27, 2017

DEFENDANT’S MOTION TO DISMISS TAC 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 GREENBERG TRAURIG, LLP MARK D. KEMPLE (SBN 145219) ASHLEY FARRELL PICKETT (SBN 271825) 1840 Century Park East, Suite 1900 Los Angeles, CA 90067-2121 Telephone: 310-586-7700 Facsimile: 310-586-7800 Email: kemplem@gtlaw.com farrellpicketta@gtlaw.com Attorneys for Defendant Great American Chicken Corp, Inc., d/b/a Kentucky Fried Chicken UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CELENA KING, individually and on behalf of all others similarly situated, Plaintiff, v. GREAT AMERICAN CHICKEN CORP, INC. d/b/a Kentucky Fried Chicken, a California Corporation; and DOES 1 through 50, inclusive, Defendants. CASE NO. 2:17-cv-04510-GW(ASx) DEFENDANT’S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S THIRD AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; FED. R. CIV. P. 12(b)(6) (Filed and Served Concurrently With [Proposed] Order) Date: January 4, 2018 Time: 8:30 a.m. Dept.: 9D Judge: Hon. George H. Wu Action Filed: January 10, 2017 Action Removed: June 19, 2017 Trial Date: None Set Case 2:17-cv-04510-GW-AS Document 29 Filed 11/27/17 Page 1 of 25 Page ID #:463 1 DEFENDANT MOTION TO DISMISS TAC 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TO THE COURT, PLAINTIFF AND HER COUNSEL OF RECORD: PLEASE TAKE NOTICE THAT on January 4, 2018, at 8:30 a.m., or as soon thereafter as the matter may be heard, in Courtroom 9D of the United States District Court, Central District of California, located at 350 West 1st Street, Los Angeles, CA 90012, Defendant Great American Chicken Corp, Inc., d/b/a Kentucky Fried Chicken (herein, “Defendant”) will and hereby does move the Court pursuant to Federal Rule of Civil Procedure (“FRCP”) Rule 12 for an order pursuant to FRCP Rule 12(b)(6) dismissing Counts 1-6 in Plaintiff’s Third Amended Complaint for failure to state a claim and for uncertainty. In what is now her fourth pleading attempt, Plaintiff Celena King again offers facially deficient allegations as to Counts 1-6. Despite repeat prior Orders and guidance from the Court concerning the deficiencies of these Counts, and extensive and repeat prior formal briefings and letter briefings from Defendant outlining the same, Plaintiff has errantly insisted throughout that her various pleadings satisfy the well-established pleading standards. And again, Plaintiff’s fourth pleading attempt – which merely adds conclusions and incomplete scenarios – is deficient. Specifically, in response to this Court’s October 19, 2017 Order holding that Plaintiff’s Failure to Authorize and Permit Meal Periods (Count 1), Failure to Authorize and Permit Rest Periods (Count 2), Failure to Pay Minimum Wages (Count 3), and Failure to Pay Overtime (Count 4) claims remained deficient because they failed to meet the pleading standards outlined in Landers v. Quality Commc’ns, Inc., 771 F.3d 638 (9th Cir. 2014),1 Plaintiff amended her TAC to identify three dates and allege – via conclusion – that violations possibly occurred on these dates. To be clear, the TAC still fails to allege facts demonstrating that there was “at least one workweek in which [Plaintiff] worked in excess of forty hours and was not paid for the excess hours in that workweek, [] was not paid minimum wages”, or one instance in which she was not authorized and permitted to take a legally mandated meal or rest break. Landers v. Quality Commc'ns, 1 On this basis, the Court also dismissed Plaintiff’s derivative Waiting Time Penalties (Count 5) and Inaccurate Wage Statement (Count 6) claims. [See Dkt. No. 23.] Case 2:17-cv-04510-GW-AS Document 29 Filed 11/27/17 Page 2 of 25 Page ID #:464 2 DEFENDANT MOTION TO DISMISS TAC 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Inc., 771 F.3d 638, 646 (9th Cir. 2014).2 Stated another way, though the TAC now identifies three dates, the identification of dates alone does nothing to satisfy the pleading requirements set forth in Landers – Plaintiff still fails to allege facts supporting a meal, rest, overtime or minimum wage violation occurred on any of the identified dates. To the contrary, and perhaps due to fear of Rule 11 sanctions, the TAC pleads around such facts and impermissibly asserts only the possibility of a violation, without setting forth facts which, if taken as true, would establish a violation.3 In all, despite clear direction from this Court, Plaintiff’s TAC remains wholly 2 See also Dkt. No. 23, October 19, 2017 Order, at pp. 3-5; Shann v. Durham Sch. Servs., L.P., 182 F. Supp. 3d 1044, 1048 (C.D. Cal. 2016) (“The pleading standards set forth in Landers apply equally to Plaintiffs’ state overtime, minimum wage, meal period, and rest break allegations.”); Byrd v. Masonite Corp., 2016 WL 756523, *3 n.5 (C.D. Cal. 2016) (noting that although Landers dealt specifically with the FLSA it applied equally to certain California Labor Code sections). 3 The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully” or “facts that are ‘merely consistent with’ a defendant’s liability.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). It further asks whether the pleading’s “factual content … allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged” (Iqbal, 556 U.S. at 678 (emph. added)), such that “it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). See also Landers v. Quality Commc'ns, Inc., 771 F.3d 638, 646 (9th Cir. 2014) (citing Nakahata v. New York-Presbyterian Healthcare Sys., Inc., 723 F.3d 192, 200-01 (2d Cir. 2013)) (holding that though the plaintiff’s “allegations ‘raise the possibility’ of undercompensation [], a possibility is not the same as plausibility.”); Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1121-22 (9th Cir. 2008) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)) (A plaintiff must “plead ‘enough facts to state a claim to relief that is plausible on its face.’”); Iqbal, spura, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 556) (A complaint does not “suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’”; “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”); Soratorio v. Tesoro Ref. & Mktg. Co., LLC, 2017 WL 1520416, at *6 (C.D. Cal. Apr. 26, 2017) (granting motion to dismiss because “although Plaintiff's allegations raise the possibility of violations, Plaintiff has failed to provide sufficient detail to support a reasonable inference that Defendant violated” the statutes identified.); Freeman v. Zillow, Inc., 2015 WL 5179511, at *3 (C.D. Cal. Mar. 19, 2015) (same). Case 2:17-cv-04510-GW-AS Document 29 Filed 11/27/17 Page 3 of 25 Page ID #:465 3 DEFENDANT MOTION TO DISMISS TAC 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 bereft of facts supporting Counts 1-6 and once again does not “plausibly suggest an entitlement to relief” justifying subjecting Defendant “to the expense of discovery and continued litigation.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011).4 Unable to properly plead a claim, Plaintiff’s strategy is to plead legal conclusions cast as “facts”5 in the hope that the Court will overlook the applicable pleading standards, and allow her to saddle Defendant with timely and costly litigation and discovery – via a putative class action no less. This strategy has, and must, fail. As Plaintiff has been given ample opportunities to state a claim as to Counts 1-6, and each time has fallen well-short of the pleading standards, Defendant moves to dismiss Counts 1-6 with prejudice for failure to state a claim and for uncertainty. This Motion is made and based upon this Notice of Motion, the accompanying Memorandum of Points and Authorities, all pleadings in this action, and such other written and oral argument as the Court may entertain on this Motion. This Motion is timely filed pursuant to F.R.C.P. 15(a)(3) and follows a meet and confer with Plaintiff’s counsel pursuant to Local Rule 7-3, which took place on November 21, 2017. Dated: November 27, 2017 Respectfully submitted, GREENBERG TRAURIG, LLP By: /s/ Mark D. Kemple Mark D. Kemple Ashley Farrell Pickett Attorneys for Defendant Great American Chicken Corp, Inc., d/b/a Kentucky Fried Chicken 4 See also e.g. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (“[A] plaintiff’s obligation to provide the “grounds” of his “entitlement to relief” requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do”); Moss v. United States Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) (“[B]are assertions ... amounting to nothing more than a ‘formulaic recitation of the elements” of a claim “are not entitled to an assumption of truth”). 5 See W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981) (courts may not “assume the truth of legal conclusions merely because they are cast in the form of factual allegations.”). Case 2:17-cv-04510-GW-AS Document 29 Filed 11/27/17 Page 4 of 25 Page ID #:466 i DEFENDANT’S MOTION TO DISMISS TAC 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS Page I. INTRODUCTION ..................................................................................................... 1 II. MOTION TO DISMISS PLEADING STANDARDS – IQBAL/TWOMBLY. ....... 3 III. PLAINTIFF’S COUNTS 1-6 STILL FAIL TO STATE A CLAIM. ........................ 4 A. Plaintiff’s Meal and Rest Period Conclusions Fail (Counts 1 and 2). ............ 4 1. Plaintiff’s New Meal Break Conclusion No. 1. .................................... 5 2. Plaintiff’s New Meal Break Conclusion No. 2. .................................... 6 3. Plaintiff’s New Meal Break Conclusion No. 3. .................................... 7 4. Plaintiff’s Sole New Rest Break Conclusion. ....................................... 8 B. Plaintiff’s Off-the-Clock Minimum Wage and Overtime Conclusions Fail (Counts 3 and 4). ........................................................................................... 11 1. Plaintiff’s New Overtime and Minimum Wage Conclusion No. 1. ................................................................................................... 11 2. Plaintiff’s New Overtime and Minimum Wage Conclusion No. 2. ................................................................................................... 14 C. Plaintiff’s Derivative Waiting Time Conclusions Fail (Count 5). ................ 15 D. Plaintiff’s Inaccurate Wage Statement Conclusions Fail (Count 6). ............ 16 IV. LEAVE TO AMEND SHOULD BE DENIED. ...................................................... 16 V. CONCLUSION ........................................................................................................ 17 Case 2:17-cv-04510-GW-AS Document 29 Filed 11/27/17 Page 5 of 25 Page ID #:467 ii DEFENDANT’S MOTION TO DISMISS TAC 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Page(s) Federal Cases Ashcroft v. Iqbal, 556 U.S. 662 (2009) .............................................................................................. 2, 4, 15 Balistreri v. Pacifica Police Dep’t, 901 F.2d 696 (9th Cir. 1990) .......................................................................................... 3 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) .......................................................................................... 2, 3, 4, 15 Byrd v. Masonite Corp., 2016 WL 756523 (C.D. Cal. 2016) ................................................................................ 1 Clark v. EmCare, Inc., 2017 WL 1073342 (C.D. Cal. Mar. 21, 2017) ................................................................ 5 Corbin v. Time Warner Entm’t-Advance/Newhouse P’ship, 821 F.3d 1069 (9th Cir. 2016) ................................................................................ 13, 14 Daugherty v. SolarCity Corp., 2017 WL 386253 (N.D. Cal. Jan. 26, 2017) ................................................................. 15 Freeman v. Zillow, Inc., 2015 WL 5179511 (C.D. Cal. Mar. 19, 2015) .................................................... 2, 10, 12 Gadda v. State Bar of Cal., 511 F.3d 933 (9th Cir. 2007) ........................................................................................ 17 Guerrero v. Halliburton Energy Servs., Inc., 2016 WL 6494296 (E.D. Cal. Nov. 2, 2016) ...................................................... 9, 13, 14 Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116 (9th Cir. 2008) .............................................................................. 2, 4 Landers v. Quality Commc’ns, Inc., 771 F.3d 638 (9th Cir. 2014) ................................................................................. passim Lopez v. Wendy’s Restaurant Group, 2011 WL 6967932 (C.D. Cal. 2011) .................................................................. 9, 15, 16 Case 2:17-cv-04510-GW-AS Document 29 Filed 11/27/17 Page 6 of 25 Page ID #:468 iii DEFENDANT’S MOTION TO DISMISS TAC 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Lundy v. Catholic Health System of Long Island Inc., 711 F.3d 106 (2d Cir.2013) .......................................................................................... 12 Miller v. Yokohama Tire Corp., 358 F.3d 616 (9th Cir. 2004) ........................................................................................ 16 Moss v. United States Secret Serv., 572 F.3d 962 (9th Cir. 2009) ...................................................................................... 2, 3 Pedroza v. PetSmart, Inc., 2012 WL 9506073 (C.D. Cal. June 14, 2012) .............................................................. 16 Perez v. Wells Fargo & Co., 2015 WL 1887354 (N.D. Cal. Apr. 24, 2015) ........................................................ 13, 14 Sanchez v. Ritz Carlton, 2015 WL 5009659 (C.D. Cal. Aug. 17, 2015) ............................................................. 15 Schneider v. Space Sys./Loral, Inc., 2012 WL 1980819 (N.D. Cal. 2012) ...................................................................... 12, 14 Shann v. Durham Sch. Servs., L.P., 182 F. Supp. 3d 1044 (C.D. Cal. 2016) .................................................................. 1, 7, 9 Soratorio v. Tesoro Ref. & Mktg. Co., LLC, 2017 WL 1520416 (C.D. Cal. Apr. 26, 2017) ................................................ 2, 4, 10, 15 In re Stac Elecs. Sec. Litig., 89 F.3d 1399 (9th Cir. 1996) .......................................................................................... 3 Starr v. Baca, 652 F.3d 1202 (9th Cir. 2011) .................................................................................... 2, 4 Tan v. GrubHub, Inc., 171 F. Supp. 3d 998 (N.D. Cal. 2016) .................................................................... 12, 14 W. Mining Council v. Watt, 643 F.2d 618 (9th Cir. 1981) .......................................................................................... 3 State Cases Barnhill v. Robert Saunders & Co., 125 Cal.App.3d 1 (1981) .............................................................................................. 16 Case 2:17-cv-04510-GW-AS Document 29 Filed 11/27/17 Page 7 of 25 Page ID #:469 iv DEFENDANT’S MOTION TO DISMISS TAC 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Brinker Rest. Corp. v. Superior Court, 53 Cal. 4th 1004 (2012) .............................................................................................. 5, 6 Gomez v. Lincare, Inc., 173 Cal.App.4th 508 (2009) ................................................................................... 13, 14 Nordstrom Comm’n Cases, 186 Cal.App.4th 576 (2010) ................................................. 16 Oppenheimer v. Moebius, 151 Cal. App. 2d 818 (1957) .................................................................................. 13, 14 Prachasaisoradej v. Ralphs Grocery Co., Inc., 42 Cal.4th 217 (2007) ................................................................................................... 15 State Statutes California Labor Code § 203 ............................................................................................. 16 California Labor Code § 226.7(b) ........................................................................................ 5 Rules Federal Rules of Civil Procedure, Rule 11 .......................................................................... 2 Federal Rules of Civil Procedure, Rule 12(b)(6) ................................................................. 3 Case 2:17-cv-04510-GW-AS Document 29 Filed 11/27/17 Page 8 of 25 Page ID #:470 1 DEFENDANT’S MOTION TO DISMISS TAC 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION In what is now her fourth pleading attempt, Plaintiff Celena King again offers facially deficient allegations as to Counts 1-6. Despite repeat prior Orders and guidance from the Court concerning the deficiencies of these Counts, and extensive and repeat prior formal briefings and letter briefings from Defendant outlining the same, Plaintiff has errantly insisted throughout that her various pleadings satisfy the well-established pleading standards. And again, Plaintiff’s fourth pleading attempt – which merely adds conclusions and incomplete scenarios – is deficient. Specifically, in response to this Court’s October 19, 2017 Order holding that Plaintiff’s Failure to Authorize and Permit Meal Periods (Count 1), Failure to Authorize and Permit Rest Periods (Count 2), Failure to Pay Minimum Wages (Count 3), and Failure to Pay Overtime (Count 4) claims remained deficient because they failed to meet the pleading standards outlined in Landers v. Quality Commc’ns, Inc., 771 F.3d 638 (9th Cir. 2014),1 Plaintiff amended her TAC to identify three dates and allege – via conclusion – that violations possibly occurred on these dates. To be clear, the TAC still fails to allege facts demonstrating that there was “at least one workweek in which [Plaintiff] worked in excess of forty hours and was not paid for the excess hours in that workweek, [] was not paid minimum wages”, or one instance in which she was not authorized and permitted to take a legally mandated meal or rest break. Landers v. Quality Commc'ns, Inc., 771 F.3d 638, 646 (9th Cir. 2014).2 Stated another way, though the TAC now identifies three dates, the identification of dates alone does nothing to satisfy the pleading 1 On this basis, the Court also dismissed Plaintiff’s derivative Waiting Time Penalties (Count 5) and Inaccurate Wage Statement (Count 6) claims. [See Dkt. No. 23.] 2 See also Dkt. No. 23, October 19, 2017 Order, at pp. 3-5; Shann v. Durham Sch. Servs., L.P., 182 F. Supp. 3d 1044, 1048 (C.D. Cal. 2016) (“The pleading standards set forth in Landers apply equally to Plaintiffs’ state overtime, minimum wage, meal period, and rest break allegations.”); Byrd v. Masonite Corp., 2016 WL 756523, *3 n.5 (C.D. Cal. 2016) (noting that although Landers dealt specifically with the FLSA it applied equally to certain California Labor Code sections). Case 2:17-cv-04510-GW-AS Document 29 Filed 11/27/17 Page 9 of 25 Page ID #:471 2 DEFENDANT’S MOTION TO DISMISS TAC 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 requirements set forth in Landers – Plaintiff still fails to allege facts supporting a meal, rest, overtime or minimum wage violation occurred on any of the identified dates. To the contrary, and perhaps due to fear of Rule 11 sanctions, the TAC pleads around such facts and impermissibly asserts only the possibility of a violation, without setting forth facts which, if taken as true, would establish a violation.3 In all, despite clear direction from this Court, Plaintiff’s TAC remains wholly bereft of facts supporting Counts 1-6 and once again does not “plausibly suggest an entitlement to relief” justifying subjecting Defendant “to the expense of discovery and continued litigation.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011).4 Unable to 3 The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully” or “facts that are ‘merely consistent with’ a defendant’s liability.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). It further asks whether the pleading’s “factual content … allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged” (Iqbal, 556 U.S. at 678 (emph. added)), such that “it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). See also Landers v. Quality Commc'ns, Inc., 771 F.3d 638, 646 (9th Cir. 2014) (citing Nakahata v. New York-Presbyterian Healthcare Sys., Inc., 723 F.3d 192, 200-01 (2d Cir. 2013)) (holding that though the plaintiff’s “allegations ‘raise the possibility’ of undercompensation [], a possibility is not the same as plausibility.”); Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1121-22 (9th Cir. 2008) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)) (A plaintiff must “plead ‘enough facts to state a claim to relief that is plausible on its face.’”); Iqbal, spura, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 556) (A complaint does not “suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’”; “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”); Soratorio v. Tesoro Ref. & Mktg. Co., LLC, 2017 WL 1520416, at *6 (C.D. Cal. Apr. 26, 2017) (granting motion to dismiss because “although Plaintiff's allegations raise the possibility of violations, Plaintiff has failed to provide sufficient detail to support a reasonable inference that Defendant violated” the statutes identified.); Freeman v. Zillow, Inc., 2015 WL 5179511, at *3 (C.D. Cal. Mar. 19, 2015) (same). 4 See also e.g. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (“[A] plaintiff’s obligation to provide the “grounds” of his “entitlement to relief” requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do”); Moss v. United States Secret Serv., 572 F.3d 962, 969 (9th Cir. Case 2:17-cv-04510-GW-AS Document 29 Filed 11/27/17 Page 10 of 25 Page ID #:472 3 DEFENDANT’S MOTION TO DISMISS TAC 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 properly plead a claim, Plaintiff’s strategy is to plead legal conclusions cast as “facts”5 in the hope that the Court will overlook the applicable pleading standards, and allow her to saddle Defendant with timely and costly litigation and discovery – via a putative class action no less. This strategy has, and must, fail. As Plaintiff has been given ample opportunities to state a claim as to Counts 1-6, and each time has fallen well-short of the pleading standards, Defendant moves to dismiss Counts 1-6 with prejudice for failure to state a claim and for uncertainty. II. MOTION TO DISMISS PLEADING STANDARDS – IQBAL/TWOMBLY. A Rule 12(b)(6) motion tests the legal sufficiency of the claims asserted in the complaint. A Rule 12(b)(6) dismissal is proper only where there is either a “lack of a cognizable legal theory” or “the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a complaint must contain “more than labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Id.. See also Moss v. United States Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) (“[B]are assertions . . . amounting to nothing more than a ‘formulaic recitation of the elements’” of a claim “are not entitled to an assumption of truth”) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 681 (2009)). In this regard, courts may not “assume the truth of legal conclusions merely because they are cast in the form of factual allegations.” W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). See also In re Stac Elecs. Sec. Litig., 89 F.3d 1399, 1403 (9th Cir. 1996) (“Conclusory allegations of law and unwarranted inferences are insufficient to defeat a motion to dismiss for failure to state a claim.”). 2009) (“[B]are assertions ... amounting to nothing more than a ‘formulaic recitation of the elements” of a claim “are not entitled to an assumption of truth”). 5 See W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981) (courts may not “assume the truth of legal conclusions merely because they are cast in the form of factual allegations.”). Case 2:17-cv-04510-GW-AS Document 29 Filed 11/27/17 Page 11 of 25 Page ID #:473 4 DEFENDANT’S MOTION TO DISMISS TAC 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Further, a plaintiff must articulate “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570 (emphasis added). The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully” or “facts that are ‘merely consistent with’ a defendant’s liability.” Iqbal, 556 U.S. at 678. It further asks whether the pleading’s “factual content … allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged” (Iqbal, 556 U.S. at 678 (emph. added)), such that “it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011).6 III. PLAINTIFF’S COUNTS 1-6 STILL FAIL TO STATE A CLAIM. A. Plaintiff’s Meal and Rest Period Conclusions Fail (Counts 1 and 2). Despite being afforded a fourth opportunity to allege facts supporting a meal and rest period claim (Counts 1 and 2), Plaintiff’s SAC once again falls far-short of the requisite pleading requirements. Specifically, in response to this Court’s October 19, 2017 Order holding that Plaintiff’s meal and rest period claims remained deficient because they failed to meet the pleading standards outlined in Landers v. Quality Commc’ns, Inc., 771 F.3d 638 (9th Cir. 2014), Plaintiff amended her TAC to identify 6 See also Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1121-22 (9th Cir. 2008) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)) (A plaintiff must “plead ‘enough facts to state a claim to relief that is plausible on its face.’”); Iqbal, spura, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 556) (A complaint does not “suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’”; “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”); Landers v. Quality Commc'ns, Inc., 771 F.3d 638, 646 (9th Cir. 2014) (citing Nakahata v. New York-Presbyterian Healthcare Sys., Inc., 723 F.3d 192, 200-01 (2d Cir. 2013)) (holding that though the plaintiff’s “allegations ‘raise the possibility’ of undercompensation [], a possibility is not the same as plausibility.”); Soratorio v. Tesoro Ref. & Mktg. Co., LLC, 2017 WL 1520416, at *6 (C.D. Cal. Apr. 26, 2017) (quoting Sanchez v. Ritz Carlton, 2015 WL 5009659, at *3 (C.D. Cal. Aug. 17, 2015)) (“Without [the requisite] factual allegations about Plaintiffs’ specific experiences, the claims against Defendant[] [] merely ‘conceivable,’ not ‘plausible.’”). Case 2:17-cv-04510-GW-AS Document 29 Filed 11/27/17 Page 12 of 25 Page ID #:474 5 DEFENDANT’S MOTION TO DISMISS TAC 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 three dates and allege – via conclusion – that violations possibly occurred on these dates. As outlined below, each of the meal and rest break allegations added to Plaintiff’s TAC, is deficient. 1. Plaintiff’s New Meal Break Conclusion No. 1. As a starting point, “an employer's obligation is to relieve its employee of all duty, with the employee thereafter at liberty to use the meal [or rest] period for whatever purpose he or she desires, but the employer need not ensure that no work is done.” Brinker Rest. Corp. v. Superior Court, 53 Cal. 4th 1004, 1017 (2012). An “employer [thus] satisfies this [meal and rest period] obligation if it ... does not impede or discourage” employees from taking a break. Clark v. EmCare, Inc., 2017 WL 1073342, at *4 (C.D. Cal. Mar. 21, 2017) (citing Brinker, 53 Cal. 4th at 1040).7 Accordingly, black-letter case law holds that a meal or rest break may be authorized and permitted, but chosen not to be taken by the employee, or chosen to be taken by the employee at a later time (i.e. after the end of the fifth hour of work or after in the four hour work period mid- point), for whatever reason. Brinker, 53 Cal. 4th at 1049. With this authority in mind, we turn to ¶17 of the TAC, which alleges that: “on January 22, 2016, PLAINTIFF worked an eight-hour shift. The following day, PLAINTIFF’s manager Christopher Fonseca edited PLAINTIFF’S time records to insert a timely 30-minute meal break into PLAINTIFF’s time records even though PLAINTIFF had not taken a timely 30-minute meal break the previous day.” 7 An “employer is not obligated to police meal breaks and ensure no work thereafter is performed. Bona fide relief from duty and the relinquishing of control satisfies the employer's obligations, and work by a relieved employee during a meal break does not thereby place the employer in violation of its obligations and create liability for premium pay under Wage Order No. 5, subdivision 11(B) and Labor Code section 226.7, subdivision (b).” Brinker Rest. Corp. v. Superior Court, 53 Cal. 4th 1004, 1040–41 (2012). Case 2:17-cv-04510-GW-AS Document 29 Filed 11/27/17 Page 13 of 25 Page ID #:475 6 DEFENDANT’S MOTION TO DISMISS TAC 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 [FAC, ¶17.] Read carefully, Plaintiff’s allegation that – on a specific day – her manager inserted a “timely” meal break into her time records even though Plaintiff allegedly “had not taken a timely 30-minute meal break” does not state a meal break violation. Initially, unalleged are facts demonstrating that Plaintiff did not “take[] a timely 30-minute meal break” because Defendant somehow “impede[d] or discourage[d]” her from doing so. Indeed, Plaintiff does not even conclude that the meal period at issue was not authorized or permitted by Defendant. On this initial basis, ¶17 fails to state a meal break claim. As pled, it is unclear if Plaintiff was authorized and permitted to take a timely meal break, but on her own accord chose not to take a meal break that day, or chose to take one after the end of the fifth hour of work – both situations which case law maintains do not “place[s] the employer in violation of its obligations and create liability for premium pay.” Brinker, 53 Cal. 4th at 1040-41. Further unalleged are facts indicating whether Plaintiff took a meal break prior to the end of her fifth hour or work, but chose to return to work a few minutes early and on this basis did not take a full “30-minute meal break” – another circumstance that would not support a meal break violation. Simply, as is supported by ample case law, “Plaintiff's allegations ‘are vague and insufficient because it is unclear whether Defendants’ failure to ‘provide’ Plaintiff with meal and rest breaks was due to Defendants’ failure to relieve Plaintiff of all duty for the designated period, or if it was due to Plaintiff not taking meal and rest breaks that were otherwise available to her.” Id. (citing Carrasco v. C.H. Robinson Worldwide, Inc., 2013 U.S. Dist. LEXIS 169515, at *24, 2013 WL 6198944 (E.D. Cal. Nov. 27, 2013)). 2. Plaintiff’s New Meal Break Conclusion No. 2. Paragraph 18 of the TAC also fails to state a meal period claim. In fact, ¶18 offers even less than ¶17, alleging only that: “[o]n multiple occasions during the CLASS PERIOD, PLAINTIFF’s manager told her that the manager had clocked her out for meal period, even Case 2:17-cv-04510-GW-AS Document 29 Filed 11/27/17 Page 14 of 25 Page ID #:476 7 DEFENDANT’S MOTION TO DISMISS TAC 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 though PLAINTIFF was not permitted to take a 30-minute meal break. Instead, PLAINTIFF’s manager instructed her to take a 10-minute break.” [FAC, ¶18.] First, in violation of Landers, Plaintiff still fails to identify a single workday that she allegedly was “not permitted to take a 30-minute meal break”, and instead alleges only that such occurred “[o]n multiple occasions.” On this initial basis, this allegation fails to state a meal break claim. Second, Plaintiff again fails to factually allege how she was not “permitted to take a 30-minute meal break”, as is required.8 Literally no facts are pled in this regard. Third, also conspicuously unpled are allegations that a meal break violation occurred and meal break premium was due, but unpaid. Instead, Plaintiff attempts to skillfully plead around these facts. Specifically, Plaintiff states only that she was told that she was clocked out for a meal period, though she “was not permitted to take a 30- minute meal break.” It thus remains unclear if Plaintiff was even clocked out as she alleges she was “told.” Similarly unalleged is whether Plaintiff was paid a meal break premium on these (unidentified) instances such that no claim viable exists. 3. Plaintiff’s New Meal Break Conclusion No. 3. Next, we turn to ¶34 of the TAC, which alleges that: “on February 4, 2016, PLAINTIFF clocked in for her shift at 12:30 p.m. During PLAINTIFF’s shift, PLAINTIFF’s manager Christopher Fonseca edited Plaintiff’s time records to reflect that PLAINTIFF clocked-in and out for a 30-minute meal break.” [FAC, ¶34.] On its face, this allegation fails to state a meal break claim. Indeed, Plaintiff does not even conclude, much less factually allege, that she did not take a timely 30- 8 Shann v. Durham Sch. Servs., L.P., 182 F. Supp. 3d 1044, 1047-48 (C.D. Cal. 2016) (Relying on Landers and holding that where a plaintiff “make[s] no effort to explain why, how, or even when [she was…] scheduled in such a way that prevented [her] from taking meal periods or rest breaks…[the complaint] fails to raise any substantive allegations that would allow the Court to examine the plausibility of Plaintiff[‘s] causes of action” and thus fails.) Case 2:17-cv-04510-GW-AS Document 29 Filed 11/27/17 Page 15 of 25 Page ID #:477 8 DEFENDANT’S MOTION TO DISMISS TAC 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 minute meal break on this date, as her time records were allegedly edited to reflect. To be clear, all Plaintiff alleges is that her time records were edited to show a 30-minute meal break was taken – an action that on its own is legally compliant when (i) a meal break was taken, but not recorded for some reason, or (ii) a timely meal break was authorized and permitted but chosen not to be taken at all, or chosen to be taken after the end of the fifth hour of work by the employee, as failure to so record would result in payment of a meal break violation that was in fact not due. 4. Plaintiff’s Sole New Rest Break Conclusion. Plaintiff’s sole new rest break allegation contained in ¶26 of the TAC similarly fails to state a claim. Paragraph 26 alleges that: “on February 1, 2016, PLAINTIFF worked a shift that lasted approximately ten hours. However, PLAINTIFF was not provided, and did not take, two 10-minute rest breaks because her manager did not authorize them because the restaurant was understaffed.” [FAC, ¶ 26.] Once again, even the most basic facts are unpled. Indeed, it is unclear whether Plaintiff alleges she took one, but not both, rest breaks on the day in question (and, if so, whether the first or second rest break was untaken), or did not take any rest breaks on this day. Similarly unpled are facts demonstrating how “Plaintiff was not provided” the (unidentified) rest break(s). To be clear, while Plaintiff alleges that the rest break(s) were “not authorized [] because the restaurant was understaffed”, this allegation raises only additional questions as to the nature of Plaintiff’s claim, including what Plaintiff means by stating that “her manager did not authorize” break(s). For instance, is Plaintiff alleging the manager (i) failed to affirmatively tell her to take a rest break (something the manager is not required to do), (ii) told her she could not take a break at a specific time (which would not preclude Plaintiff from taking a compliant rest break at a later time), or (iii) some other possible scenario? And, importantly, as Plaintiff knows well from the Parties various briefings and Orders of this Court, the conclusion that the restaurant was Case 2:17-cv-04510-GW-AS Document 29 Filed 11/27/17 Page 16 of 25 Page ID #:478 9 DEFENDANT’S MOTION TO DISMISS TAC 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 understaffed fails as a matter of law. See Lopez v. Wendy’s Restaurant Group, 2011 WL 6967932, at *3 (C.D. Cal. 2011) (“allegation that Wendy’s ‘failed to provide [its] employees with required ten minute rest periods,’ did not distinguish between actively discouraging employees from taking breaks and failing to ensure that they took breaks … Lopez has added an allegation [] that meal breaks and rest periods were missed ‘because the store[s] [were] too busy and/or understaffed.’ She also alleges for the first time that she was ‘forced, through necessity of completing her assigned tasks, as ordered by DEFENDANT’s management,’ to work through all or portions of her meal breaks and rest periods. Neither addition renders the allegations adequate, however, as there is a difference between being ordered to [skip] breaks and being ordered to complete one’s assigned tasks, which results in one skipping breaks. Specifically, the allegation that Lopez was ‘ordered by management’ to complete her assigned tasks is not equivalent, standing alone, to an allegation that management ordered her to complete assigned tasks knowing that this would necessarily result in her skipping meal breaks and rest periods. Lopez’s allegations, therefore, do not delineate the manner in which Wendy’s ‘failed to provide’ the breaks.”); Guerrero v. Halliburton Energy Servs., Inc., 2016 WL 6494296, at *5-6 (E.D. Cal. Nov. 2, 2016) (allegation that Defendants’ “business model was such that Non-Exempt Employees were assigned too much work that could not reasonably completed in their assigned shift work, and/or role” and that Defendants pressured Plaintiff and the class members to complete their tasks within “rigorous time frames,” and “discouraging” and “impeding” Plaintiff and the class members from taking meal periods” was insufficient to state a claim.); Shann, supra, 182 F. Supp. 3d at 1047-48 (Relying on Landers and holding that where a plaintiff “make[s] no effort to explain why, how, or even when [she was…] scheduled in such a way that prevented [her] from taking meal periods or rest breaks…[the complaint] fails to raise any substantive allegations that would allow the Court to examine the plausibility of Plaintiff[‘s] causes of action” and thus fails.). Case 2:17-cv-04510-GW-AS Document 29 Filed 11/27/17 Page 17 of 25 Page ID #:479 10 DEFENDANT’S MOTION TO DISMISS TAC 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Furthermore, Plaintiff fails to conclude – much less factually allege – that she was not paid for the allegedly “[un]provided” rest break(s), as is required. See Freeman v. Zillow, Inc., 2015 WL 5179511, at *5 (C.D. Cal. Mar. 19, 2015) (dismissal of a meal breaks claim warranted because “nowhere does Plaintiff allege at least one meal or rest break where he worked through the break and was not paid for that time.”); Soratorio v. Tesoro Ref. & Mktg. Co., LLC, 2017 WL 1520416, at *6 (C.D. Cal. Apr. 26, 2017) (same). * * * * * In all, the TAC once again fails to allege any: (i) facts showing on a given day Plaintiff worked a continuous period of more than five hours, such that she was entitled to a meal break in the first instance; (ii) facts showing how she was denied the opportunity to take a meal break by her manager or other representative of her employer on that day; (iii) facts identifying the “manager” or other representative of her employer who “denied” her a meal break on that day; (iv) facts showing on a given day she worked a continuous period of more than three and a half hours, such that she was entitled to an initial rest break in the first instance; (v) facts showing how she was denied the opportunity to take a rest break by her manager or other representative of her employer on that day; (vi) facts identifying the “manager” or other representative of her employer who “denied” her a rest break on that day; (vii) facts showing on a given day that she worked a continuous period of more than six, but less than ten hours, such that she was entitled to a second rest break in the first instance; (viii) facts showing how she was denied the opportunity to take a second meal break by her manager or other representative of her employer on that day; (ix) facts identifying the “manager” or other representative of her employer who “denied” her a meal break on that day; (x) facts showing on a given day she took a meal break after the fifth hour of work (xi) facts showing the reason she took a meal break after the fifth hour of work was because she was denied the opportunity to take the meal period sooner by her manager or other representative of her employer; (xii) facts identifying the “manager” or other Case 2:17-cv-04510-GW-AS Document 29 Filed 11/27/17 Page 18 of 25 Page ID #:480 11 DEFENDANT’S MOTION TO DISMISS TAC 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 representative of her employer who “denied” her a meal break on that day; (xiii) facts showing on a given day she took a rest break, but it was not in the middle of the operative work period, (xiv) facts showing the reason she did not take the rest break in the middle of the operative work period was because her manager failed too authorize her to do so, (xv) facts showing that it would have practicable for her manager to do so; and (xvi) facts identifying the “manager” or other representative of her employer who “denied” her the rest break at issue. Landers v. Quality Commc'ns, Inc., 771 F.3d 638, 646 (9th Cir. 2014). For each of these independent reasons, the TAC fails to state a meal or rest break claim. B. Plaintiff’s Off-the-Clock Minimum Wage and Overtime Conclusions Fail (Counts 3 and 4). As with her meal and rest period claims, each of the overtime and minimum wage allegations added to Plaintiff’s TAC is deficient. 1. Plaintiff’s New Overtime and Minimum Wage Conclusion No. 1. The TAC attempts to plead an overtime and minimum wage claim via the addition of paragraphs 34 and 46. However, upon review, neither of these paragraphs states a claim. Specifically, paragraphs 34 and 46 of the TAC allege that: “on February 4, 2016, PLAINTIFF clocked in for her shift at 12:30 p.m. During PLAINTIFF’s shift, PLAINTIFF’s manager Christopher Fonseca edited Plaintiff’s time records to reflect that PLAINTIFF clocked-in and out for a 30-minute meal break. Mr. Fonseca also edited PLAINTIFF’s time records to reflect that PLAINTIFF clocked out at 9:00 p.m., despite the fact that PLAINTIFF worked past 9:00 p.m. As a result, PLAINTIFF was paid for eight hours of work, even though she worked more than eight hours … [and thus] during the workweek that lasted from February 2, 2016 to February 8, 2016, PLAINTIFF was not paid for all overtime hours worked ...” Case 2:17-cv-04510-GW-AS Document 29 Filed 11/27/17 Page 19 of 25 Page ID #:481 12 DEFENDANT’S MOTION TO DISMISS TAC 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 [TAC, ¶¶ 34, 46.] When read closely it becomes clear that these allegations are void of the requisite facts to support a minimum wage or overtime claim. Specifically, though Plaintiff concludes Mr. Fonseca edited her time records to show a 30-minute meal break, Plaintiff conspicuously fails to allege that a 30-minute meal break was not taken on this day. Consequently, Plaintiff’s claim that she worked more than 8 hours is supported only by the conclusion that Plaintiff “worked past 9:00 p.m.” and thus “worked more than 8 hours.” Stated another way, because Plaintiff alleges her shift began at 12:30 p.m., upon her taking a 30-minute meal break, Plaintiff’s 8 hour shift would end at 9:00 p.m. Notably, Plaintiff fails to allege what time she worked until, and instead only alleges it was “past 9:00 p.m.” This is not enough. As has been briefed to Plaintiff several times now, she “must identify facts that give rise to a plausible inference that [s]he was not paid minimum wage or overtime during at least one work week.” Tan v. GrubHub, Inc., 171 F. Supp. 3d 998, 1008 (N.D. Cal. 2016). Yet, here absent are any facts regarding the alleged time that Plaintiff worked on February 4, 2016 until, or the alleged “work” that she performed “past 9:00 p.m.” Because “[t]here are no allegations about what period of time or type of conduct Plaintiffs are counting as hours worked. Without these basic factual allegations, the Court cannot conclude that Plaintiffs' minimum wage or overtime claims are plausible.” Id. (emph. added); see also Landers v. Quality Commc'ns, Inc., 771 F.3d 638, 642 (9th Cir. 2014) (agreeing with holding of Lundy v. Catholic Health System of Long Island Inc., 711 F.3d 106, 114-15 (2d Cir.2013) holding that “Plaintiff's failure to detail ‘how occasionally’ or ‘how long’ she worked in excess of her regular shift, or that she was denied overtime pay in any of those weeks when she worked in excess of her regular shift doomed her claim.”); see also Schneider v. Space Sys./Loral, Inc., 2012 WL 1980819, at *2 (N.D. Cal. 2012) (pleading sufficient only after amended to allege “facts setting out the uncompensated hours [plaintiff] worked”); Freeman v. Zillow, Inc., 2015 WL 5179511, at *4 (C.D. Cal. Mar. 19, 2015) (quotations omitted) (a plaintiff must “provide sufficient detail about the length and frequency of [her] unpaid work to support a Case 2:17-cv-04510-GW-AS Document 29 Filed 11/27/17 Page 20 of 25 Page ID #:482 13 DEFENDANT’S MOTION TO DISMISS TAC 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 reasonable inference that [she] worked [overtime]”; “as in Landers, Plaintiff has “failed to provide sufficient detail about the length and frequency of [Plaintiff's] unpaid work to support a reasonable inference that [Plaintiff] worked more than forty hours in a given week.”); Oppenheimer v. Moebius, 151 Cal. App. 2d 818, 819-20 (1957) (complaint “for unpaid wages does not state a cause of action against the employer unless it alleges the amount of wages accrued and unpaid at the time the employment relationship terminated”); Guerrero v. Halliburton Energy Servs., Inc., 2016 WL 6494296, at *5 (E.D. Cal. Nov. 2, 2016) (allegations that Defendants “failed to pay overtime when employees worked over 8 hours per day and when employees worked over 40 hours per week,” and that Defendants “devised a computer program to edit the actual hours reported by Plaintiff and the Class Members, deducting a portion of the hours shown as worked hour when a meal period and/or rest period was not taken during the work day” were insufficient to state a claim). Indeed, as pled it remains unclear if Plaintiff is alleging she worked a few seconds, a few minutes, or a few hours past 9:00 a.m. – facts which are essential to determining whether Plaintiff’s claimed compensable time is de minimis and thus cannot support a cause of action in the first instance. See Corbin v. Time Warner Entm't- Advance/Newhouse P'ship, 821 F.3d 1069, 1081, fn. 11 (9th Cir. 2016) (recognizing that “the California Court of Appeal has applied the federal de minimis standard to state wage claims [and thus] as a general rule, employees cannot recover for otherwise compensable time if it is de minimis”); Gomez v. Lincare, Inc., 173 Cal.App.4th 508, 527–28 (2009) (applying de minimis standard to California overtime claim); Perez v. Wells Fargo & Co., 2015 WL 1887354, at *8 (N.D. Cal. Apr. 24, 2015) (granting motion to dismiss overtime claim based on de minimis standard).9 / / / 9 Though Defendant believes such provides an additional basis for dismissal, based on the Court’s October 19, 2017 Tentative ruling, Defendant does not restate its argument that Plaintiff has only offered conclusory allegations regarding how Defendant suffered and permitted off-the-clock or unpaid work. Case 2:17-cv-04510-GW-AS Document 29 Filed 11/27/17 Page 21 of 25 Page ID #:483 14 DEFENDANT’S MOTION TO DISMISS TAC 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2. Plaintiff’s New Overtime and Minimum Wage Conclusion No. 2. Paragraph 35 of the TAC also fails to state an overtime or minimum wage claim. In fact, ¶35 offers even less than ¶¶ 34 and 46, alleging only that: “On multiple occasions during the CLASS PERIOD, PLAINTIFF’s manager informed her that she did not need to clock-out at the end of her shift because the manager had already clocked her out before she finished working.” [FAC, ¶35.] Once again, on its face, this allegation fails to state a claim. First, in violation of Landers, Plaintiff still fails to identify a single workday that she allegedly was “clocked out before she finished working” and instead alleges only that such occurred “[o]n multiple occasions.” On this initial basis, this allegation fails. Second, absent are any facts regarding the alleged time that Plaintiff was clocked out and the time that she allegedly worked until, or the alleged “work” that she performed after she was clocked out. Thus, once more, because “[t]here are no allegations about what period of time or type of conduct Plaintiffs are counting as hours worked. Without these basic factual allegations, the Court cannot conclude that Plaintiffs' minimum wage or overtime claims are plausible.” Tan, 171 F. Supp. 3d 1008; Landers, 771 F.3d 642; Schneider, 2012 WL 1980819, at *2; Oppenheimer, 151 Cal. App. 2d 819-20; Guerrero 2016 WL 6494296, at *5. Similarly, absent are any facts from which one can determine whether Plaintiff’s claimed compensable time is de minimis and thus cannot support a cause of action in the first instance. Corbin, 821 F.3d 1081, fn. 11; Gomez, 173 Cal.App.4th 527–28; Perez, 2015 WL 1887354, at *8. * * * * * As set forth in Landers, a plaintiff must “draw on their memory and personal experience to develop factual allegations with sufficient specificity that ... plausibly suggest that defendant failed to comply with its statutory obligations.” Landers, 771 F.3d at 643. “Without [these requisite] factual allegations about Plaintiffs’ specific experiences, the claims against Defendant[] [] merely ‘conceivable,’ not ‘plausible’” as is Case 2:17-cv-04510-GW-AS Document 29 Filed 11/27/17 Page 22 of 25 Page ID #:484 15 DEFENDANT’S MOTION TO DISMISS TAC 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 required. Soratorio, supra, 2017 WL 1520416, at *6 (quoting Sanchez v. Ritz Carlton, 2015 WL 5009659, at *3 (C.D. Cal. Aug. 17, 2015)); see also fn. 3 supra. Here, although Plaintiff’s meal, rest, overtime and minimum wage allegations “raise the possibility of undercompensation [], a possibility is not the same as plausibility” and Counts 1-4 each fail. See Landers, 771 F.3d at 646; Sanchez, 2015 WL 5009659, at *3. Via these factually vacuous allegations that do not articulate a basis for liability even as to Plaintiff herself, Plaintiff seeks to unlock discovery not only as to her own claims, but also to the “greater than a thousand” alleged putative class members she seeks to represent. [TAC ¶9(a).] Avoiding the time, expense, and burden inherent in class litigation is one of the key principles underlying the Supreme Court’s pronouncements on pleading standards. Simply put, and as required by Twombly and its progeny, because Plaintiff’s vague allegations are conclusory and – to the extent factual at all – permit multiple “alternative explanations,” they do not state a claim that could “plausibly give rise to an entitlement to relief” and therefore fail. Ashcroft v. Iqbal, 556 U.S. 662 (2009). C. Plaintiff’s Derivative Waiting Time Conclusions Fail (Count 5). First, this Count is entirely derivative of the prior wage Counts. Because those wage Counts fail to state a claim, this Count also fails to state a claim. Lopez v. Wendy’s Restaurant Group, 2011 WL 6967932, at *7 (C.D. Cal. 2011) (because the underlying wage claims fail to state a claim, the derivative waiting time penalty claim fails); Prachasaisoradej v. Ralphs Grocery Co., Inc., 42 Cal.4th 217, 244 (2007) (because underlying wage claims fail to state a claim, derivative claims similarly fail). Second, Plaintiff still offers no factual allegations supporting a waiting time penalty claim. For example, missing are any allegations concerning the entitlement to a wage, the manner of severance, and date of final payment, and omissions from final payment. See Daugherty v. SolarCity Corp., 2017 WL 386253, at *8 (N.D. Cal. Jan. 26, 2017) (dismissing waiting time claim because plaintiff “fail[ed] to offer any explanation of what wages remain unpaid after termination … [and] [m]ost strikingly […] fails to Case 2:17-cv-04510-GW-AS Document 29 Filed 11/27/17 Page 23 of 25 Page ID #:485 16 DEFENDANT’S MOTION TO DISMISS TAC 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 allege that [Defendant] in fact failed to pay any lingering wages to her after her (presumed) termination.”).10 For each of the above independent reasons, this Count again fails to state a claim. D. Plaintiff’s Inaccurate Wage Statement Conclusions Fail (Count 6). Plaintiff’s inaccurate wage statement claim is derivative of her prior wage Counts. Because those wage Counts fail to state a claim, this Count also fails to state a claim. See e.g., Lopez, 2011 WL 6967932, *7 (because the underlying wage claims fail to state a claim, the derivative waiting time penalty claim fails). And this claim provides no additional factual content. Indeed, having only quoted the statute [TAC, ¶60], Plaintiff simply concludes, in effect, that “Defendant” did “that” – in the form of repeating the statutory language without the quotes around it.11 IV. LEAVE TO AMEND SHOULD BE DENIED. This is Plaintiff’s fourth pleading attempt. This Court has provided Plaintiff detailed Orders setting forth what must be plead to state these claims, and how it must be pled. See e.g. Dkt. No. 23. Yet, Plaintiff has still failed to state a claim as to Counts 1-6. This Court has broad discretion to deny leave to amend, where – as here – a plaintiff has previously filed three separate amended complaints, and has not complied with the Court’s prior Orders. See e.g. Miller v. Yokohama Tire Corp., 358 F.3d 616, 622 (9th Cir. 2004) (“Where the plaintiff has previously filed an amended complaint ... the 10 Though Defendant believes such provides an additional basis for dismissal, based on the Court’s October 19, 2017 Tentative ruling, Defendant does not restate its argument that Plaintiff fails to factually allege that any failure to pay wages at termination was knowing and willful, and was not done in “good faith.” See Cal. Labor Code § 203; Pedroza v. PetSmart, Inc., 2012 WL 9506073 (C.D. Cal. June 14, 2012); Nordstrom Comm’n Cases, 186 Cal.App.4th 576, 584 (2010); Barnhill v. Robert Saunders & Co., 125 Cal.App.3d 1 (1981). 11Though Defendant believes such provides an additional basis for dismissal, based on the Court’s October 19, 2017 Tentative ruling, Defendant does not restate its argument that Plaintiff fails to allege – even via conclusion – that Defendant’s provision of allegedly inaccurate wage statements was the “result of a knowing and intentional failure by [Defendant]” and was not done in “good faith.” See Cal. Labor Code § 203; Pedroza, supra; Nordstrom Comm’n Cases, supra; Barnhill, supra. Case 2:17-cv-04510-GW-AS Document 29 Filed 11/27/17 Page 24 of 25 Page ID #:486 17 DEFENDANT’S MOTION TO DISMISS TAC 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 district court’s discretion to deny leave to amend is ‘particularly broad.’”) (quoting Chodos v. W. Publ’g Co., 292 F.3d 992, 1003 (9th Cir. 2002)); Gadda v. State Bar of Cal., 511 F.3d 933, 939 (9th Cir. 2007) (affirming dismissal without leave to amend where plaintiff did “not suggest[] any possible way that he could cure his complaint to survive dismissal upon amendment”). Accordingly, Defendant requests that the Court dismiss each of Plaintiff’s Counts 1-6 without leave to amend. V. CONCLUSION For each and all of the foregoing reasons, Defendant respectfully requests that its Motion to Dismiss Plaintiff’s TAC be granted in its entirety and without leave to amend. Dated: November 27, 2017 Respectfully submitted, GREENBERG TRAURIG, LLP By: /s/ Mark D. Kemple Mark D. Kemple Ashley Farrell Pickett Attorneys for Defendant Great American Chicken Corp, Inc., d/b/a Kentucky Fried Chicken Case 2:17-cv-04510-GW-AS Document 29 Filed 11/27/17 Page 25 of 25 Page ID #:487