Joshua Kouchi v. American Airlines, Inc. et al

MEMORANDUM in Opposition to NOTICE OF MOTION AND MOTION to Dismiss Claims In The Second Amended Complaint Pursuant To Rule 12

C.D. Cal.March 25, 2019

- 1 - PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS PLAINTIFF’S COMPLAINT PURSUANT TO FED. RULES CIV.PROC., RULE 12, 28 U.S.C.A.(B)(6) 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 Kevin Mahoney, Esq. (SBN: 235367) kmahoney@mahoney-law.net George B. Singer, Esq. (SBN: 187185) gsinger@mahoney-law.net Alexander Perez, Esq. (SBN: 304675) aperez@mahoney-law.net MAHONEY LAW GROUP, APC 249 E. Ocean Blvd., Ste. 814 Long Beach, CA 90802 Telephone: (562) 590-5550 Facsimile: (562) 590-8400 Attorneys for Plaintiff JOSHUA KOUCHI as an individual and on behalf of all employees similarly situated UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA JOSHUA KOUCHI, as an individual, and on behalf of all similarly situated employees, Plaintiff, v. AMERICAN AIRLINES, INC., and DOES 1 through 50, inclusive, Defendants. Case No.: 2:18-cv-07802-PSG-AGR CLASS ACTION PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT CLAIMS IN THE SECOND AMENDED COMPLAINT PURSUANT TO FED. RULES CIV.PROC., RULE 12, 28 U.S.C.A.(B)(6) AND OPPOSITION TO DEFENDANT’S MOTION TO STRIKE ALLEGATIONS PURSUANT TO FED. RULES CIV.PROC., RULE 12, 28 U.S.C.A.(F); AND OPPPOSITION TO DEFENDANTS REQUEST FOR ATTORNEY’S FEES Date: April 15, 2019 Time: 1:30 p.m. Complaint Filed: July 16, 2018 Trial Date: Not Yet Set Case 2:18-cv-07802-PSG-AGR Document 32 Filed 03/25/19 Page 1 of 8 Page ID #:354 - 2 - PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS PLAINTIFF’S COMPLAINT PURSUANT TO FED. RULES CIV.PROC., RULE 12, 28 U.S.C.A.(B)(6) 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 I. STATEMENT OF FACTS Plaintiff, JOSHUA KOUCHI (hereinafter “Plaintiff”), on behalf of himself and a proposed class of similarly situated employees in California, brought this action in the Superior Court of California in and for the County of Los Angeles On July 16, 2018 against Defendant AMERICAN AIRLINES, INC. (hereinafter “AA” or “Defendant”) This is a class action brought on behalf of Plaintiff and the class he seeks to represent ("Plaintiff Class") defined herein as all non-exempt employees not covered by a Collective Bargaining Agreement (“CBA”) employed by or formerly employed by Defendant AA. (see Second Amended Complaint (“SAC”) ¶ 1) Plaintiff was employed by the Defendant during the Class Period in a non-exempt hourly position. (SAC ¶ 8. The Class Period is defined as the four (4) years prior to the filing of Plaintiff’s Complaint through the date final judgment is entered. (SAC ¶ 1) Each of the Plaintiff Class members are identifiable, current and/or formerly similarly situated persons who like himself were employed in non- exempt hourly positions, and not covered by a CBA, for the Defendant during the Class Period. (SAC ¶ 8) Plaintiff alleges in his First Amended Complaint, amongst other claims, a claim for Defendant’s failure to pay minimum wages in accordance with the Fair Labor Standards Act (“FLSA”) (29 U.S.C.A. § 207 (a) (West), et. seq.) On January 23, 2019, this Court granted Defendant AA’s Motion to Dismiss, Plaintiff’s claim for violation of the FLSA granting Plaintiff leave to amend and the ability to “allege facts sufficient to show that his FLSA claim is not in fact a gap time claim.” (ECF No. 28, at 4-5 (emphasis in original).) Plaintiff then filed his Second Amended Complaint (“SAC”) on February 15, 2019 including a claim against Defendant AA for failure to pay minimum wages in accordance with the FLSA. Plaintiff has met and conferred with Defendants on several occasions regarding Plaintiff’s minimum wage claim. Declaration of Alex Perez, ¶ 4-6. Defendant then filed its Motion to Dismiss Claims in the Second Amended Case 2:18-cv-07802-PSG-AGR Document 32 Filed 03/25/19 Page 2 of 8 Page ID #:355 - 3 - PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS PLAINTIFF’S COMPLAINT PURSUANT TO FED. RULES CIV.PROC., RULE 12, 28 U.S.C.A.(B)(6) 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 Complaint and Request for Attorney’s Fees (“Defendant’s Motion”) on March 1, 2019. Plaintiff is not making a “gap-time” claim. “Gap time” is non-overtime work performed in a work week where less than 40 hours are worked. See U.S. Department of Labor Bulletin FLSA2004-14, Oct. 8, 2004, filed herewith as Request for Judicial Notice “A.” (Hours worked “between 35 and 40 per week are referred to as gap time.” When an employee's additional hours worked are in excess of 40 per week, the FLSA requires the employer to pay time and one-half the employee's regular rate of pay in cash ...”). In addition, courts have defined gap time as follows: ’Gap time’ refers to ‘uncompensated hours worked that fall between the minimum wage and the overtime provisions of the FLSA.’ Essentially, gap time ‘is non- overtime hours worked for which an employee is not compensated.’ Sargent v. HG Staffing, LLC (D. Nev. 2016) 171 F.Supp.3d 1063, 1077. Here, Plaintiff and Class members regularly worked over forty (40) hours in a workweek and were not paid an overtime rate for hours worked beyond the scheduled end of his shift which were hours worked beyond forty (40) hours in a week. (SAC §§ 34, 47-49, 59-60) Therefore Plaintiff is not making a “Gap Time” claim as he is not seeking recovery for hours under forty hours in a week. Instead, Plaintiff seeks recovery of unpaid minimum wages for hours worked beyond forty (40) hours in a work week which require overtime pay under the FLSA. Further, Plaintiff has plausibly alleged that he is similarly situated to the Class he seeks to represent as he seeks to represent a very distinct definition of employees for Defendant. Like himself, the proposed class are current and former non-exempt hourly employees whose employment is not covered by a CBA. Employees not covered by a CBA are a small subset of employees as the vast Case 2:18-cv-07802-PSG-AGR Document 32 Filed 03/25/19 Page 3 of 8 Page ID #:356 - 4 - PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS PLAINTIFF’S COMPLAINT PURSUANT TO FED. RULES CIV.PROC., RULE 12, 28 U.S.C.A.(B)(6) 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 majority of Defendant’s employees are covered by a CBA as union members. The fact that Plaintiff and the class he seeks to represent are not covered by a CBA in addition to the similarities in the off the clock hours worked on a routine bases makes him similarly situated to the class. Plaintiff has brought his Second Amended Complaint in good faith and having met the expectation of the Court that Plaintiff is not making a pure “Gap Time” claim, Defendant should not be awarded attorney’s fees against Plaintiff. Thus, Defendants’ Motion should be dismissed because (1) Plaintiff is not alleging a “Gap Time” claim, and (2) Plaintiff has alleged plausible allegations to support his assertion that he is ”similarly situated” to any other putative class member and further Defendant’s request for attorney’s fees should be denied. II. ARGUMENT A. Plaintiff’s FLSA Minimum Wage Claim Should Not Be Dismissed Because It Is Not An Impersmissible Gap Time Claim. “Gap time” is non-overtime work performed in a work week where less than 40 hours are worked, but more hours than the regular work-week. Req. for Judicial Notice “A”; Sargent, supra, 171 F.Supp.3d at p. 1077. Hours worked between the contracted 35-hour work-week and 40 per week are referred to as gap time. Ibid. When an employee's additional hours worked are in excess of 40 per week, the FLSA requires the employer to pay time and one-half the employee's regular rate of pay in cash ...” Req. for Judicial Notice “A” “This liability exists regardless of whether the time has been correctly recorded in the employee’s service record.” Ibid. Another clear definition of gap time comes from the 9th Circuit case Adair v. City of Kirkland (9th Cir. 1999) 185 F.3d 1055, citing Hensley v. MacMillan Bloedel Containers, Inc. (8th Cir. 1986) 786 F.2d 353, 357: “Gap time” refers to time that is not covered by the overtime provisions because it does not exceed the Case 2:18-cv-07802-PSG-AGR Document 32 Filed 03/25/19 Page 4 of 8 Page ID #:357 - 5 - PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS PLAINTIFF’S COMPLAINT PURSUANT TO FED. RULES CIV.PROC., RULE 12, 28 U.S.C.A.(B)(6) 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 overtime limit, and to time that is not covered by the minimum wage provisions because, even though it is uncompensated, the employees are still being paid a minimum wage when their salaries are averaged across their actual time worked. Adair, supra, 185 F.3d at p. 1062; emphasis added. Plaintiff and Class members regularly worked over forty (40) hours in a workweek and were not paid minimum rates of pay for hours worked beyond the fortieth hour of the work week. (SAC §48, 59-60) Defendant falsely argues that Plaintiff and Class members have been paid the appropriate minimum wages for hours worked beyond forty (40) in a work week. Defendant incorrectly argues that Plaintiff and Class members can work up to 94 hours in a work week without overtime compensation and that hours above forty in a work week are “Gap Time” hours. (see Defendant’s Motion, Page 5, ¶¶ 23–25) The U.S. Department of Labor is clear that “Gap Time” hours are those hours worked below the fortieth hour in a work week, but over the contracted workweek (in the example cited, an agreement to work a 35 hour week). See U.S. Department of Labor Bulletin FLSA2004-14, Req. for Judicial Notice “A.” “When an employee's … hours worked are in excess of 40 per week, the FLSA requires the employer to pay time and one-half the employee's regular rate of pay in cash...” Ibid. Therefore Plaintiff is not making a “Gap Time” claim as he is not seeking recovery for hours under forty hours in a week. Instead, Plaintiff seeks recovery of unpaid minimum wages for hours worked beyond forty (40) hours in a work Defendant has failed to pay Plaintiff and Plaintiff Class. /// /// /// /// Case 2:18-cv-07802-PSG-AGR Document 32 Filed 03/25/19 Page 5 of 8 Page ID #:358 - 6 - PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS PLAINTIFF’S COMPLAINT PURSUANT TO FED. RULES CIV.PROC., RULE 12, 28 U.S.C.A.(B)(6) 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 B. Plaintiff Has Plausibly Alleged That He And Putative Class Members Are Similarly Situated Because They Share A Similar Issue Of Law Or Fact Material To The FLSA Claims. The 9th Circuit Court of Appeals held in Campbell v. City of Los Angeles 903 F.3d 1090, that plaintiff’s collective cause of action under FLSA made them similarly situated and able to proceed in a collective, to the extent they shared a similar issue of law or fact material to the disposition of their FLSA claims. Campbell, 903 F.3d at 1117. Here, similar to Campbell, Plaintiff is similarly situated to the class he seeks to represent as Plaintiff and the class are current and former non-exempt hourly employees whose employment is not covered by a CBA and who were not paid minimum wages for hours worked beyond the fortieth hour of the work week. (SAC ¶¶ 8, 31, 35(e), 48-49) The definition of the class Plaintiff seeks to represent is a distinct definition of employees for Defendant. Like Plaintiff, the proposed class are non-exempt hourly employees whose employment is not covered by a CBA. (SAC ¶ 35(e)) Based on information acquired during conversations with defense counsel during meet and confer communications, American Airlines employees not covered by a CBA are a small subset of employees as the vast majority of Defendant’s employees are covered by a CBA as union members. Decl. of Alex Perez, ¶ 6. Plaintiff is plausibly similarly situated to the Class he seeks to represent because Plaintiff and the Class are a small subset of Defendant’s employees who are not covered by a CBA and have claims for unpaid wages for work performed beyond the fortieth hour of the work week. 1. Plaintiff and Class are similarly situated because they have the advantage of lower individual costs to vindicate rights by the pooling of resources. Further, the “… FLSA requires similarity of the kind that “allows ... plaintiffs the advantage of lower individual costs to vindicate rights by the pooling of resources.” Hoffmann-La Roche Inc. v. Sperling (1989) 493 U.S. 165, 170.; see Case 2:18-cv-07802-PSG-AGR Document 32 Filed 03/25/19 Page 6 of 8 Page ID #:359 - 7 - PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS PLAINTIFF’S COMPLAINT PURSUANT TO FED. RULES CIV.PROC., RULE 12, 28 U.S.C.A.(B)(6) 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 also Halle v. West Penn Allegheny Health System Inc. (3d Cir. 2016) 842 F.3d 215, 223–24. That goal is only achieved—and, therefore, a collective can only be maintained—to the extent party plaintiffs are alike in ways that matter to the disposition of their FLSA claims. Halle, supra, 842 F.3d at p. 226. If the party plaintiffs’ factual or legal similarities are material to the resolution of their case, dissimilarities in other respects should not defeat collective treatment. Cf. Aragon v. Republic Silver State Disposal Inc. (9th Cir. 2002) 292 F.3d 654, 659– 60 (applying Title VII’s “similarly situated” standard, and looking for evidence of similarities material to the plaintiff’s specific allegation of discrimination.) (Campbell, supra, 903 F.3d at p. 1114.) As described herein, Plaintiff’s and the Class’s claims under the FLSA are sufficiently distinct claims for unpaid wages under the FLSA as outlined in Plaintiff’s SAC. Because of the similarities of their claims and because the Class of employees not covered by a CBA is a small subset of Defendant’s employee’s, Plaintiff and the Class will have the advantage of lower individual costs by pooling resources in a collective action. Even if the Court finds that Plaintiff is not similarly situated to the class he seeks to represent based on the current definition described in Plaintiff’s SAC, the appropriate action is to deny Defendant’s motion to dismiss and motion to strike and instead the Court should require a more definite statement under Rule 12(e). C. Plaintiff Should Not Be Ordered To Pay Attorney’s Fees In Connection With This Motion Because This Is Not A “Gap Time” Claim And Plaintiff Has Acted In Good Faith In Filing His Second Amended Complaint. Defendant argues in its Motion that Plaintiff should be ordered to pay attorney’s fees because Plaintiff is realleging a “Gap Time” claim. (Defendant’s Motion, page 9, ¶ 20-21. For the reasons stated herein Plaintiff is not making a “Gap Time” claim and instead is making a good faith claim for unpaid minimum Case 2:18-cv-07802-PSG-AGR Document 32 Filed 03/25/19 Page 7 of 8 Page ID #:360 - 8 - PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS PLAINTIFF’S COMPLAINT PURSUANT TO FED. RULES CIV.PROC., RULE 12, 28 U.S.C.A.(B)(6) 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 wages for hours worked beyond the fortieth hour of the work week. As such Defendant’s request for attorney’s fees should be denied. “[The]…fee applicant bears the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates. The applicant should exercise “billing judgment” with respect to hours worked, …. and should maintain billing time records in a manner that will enable a reviewing court to identify distinct claims.” (Hensley v. Eckerhart (1983) 461 U.S. 424, 437(citations omitted) “[The]…district court has discretion in determining the amount of a fee award…”(Ibid.) Even if the Court is inclined to award attorney’s fees to Defendant, the Court should reduce said attorney’s fees to a reasonable amount upon defense counsel satisfying the burden of showing that such fee are reasonable. III. CONCLUSION For the foregoing reasons, Plaintiffs request that the Court deny Defendant’s Motion for Dismissal and Motion to Strike in its entirety. Dated: March 25, 2019 MAHONEY LAW GROUP, APC /s/Alex Perez Kevin Mahoney, Esq. George B. Singer, Esq. Alexander Perez, Esq. Attorneys for Plaintiff JOSHUA KOUCHI and on behalf of all employees similarly situated Case 2:18-cv-07802-PSG-AGR Document 32 Filed 03/25/19 Page 8 of 8 Page ID #:361