Aristides Francisco v. Emeritus Corporation et al

NOTICE OF MOTION AND MOTION to Dismiss Case Or In the Alternative Motion for a More Definite Statement

C.D. Cal.April 21, 2017

LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 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 J. KEVIN LILLY, Bar No. 119981 klilly@littler.com SHANNON R. BOYCE, Bar No. 229041 sboyce@littler.com LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 Telephone: 310.553.0308 Facsimile: 310.553.5583 Attorneys for Defendants EMERITUS CORPORATION AND BROOKDALE SENIOR LIVING COMMUNITIES, INC. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA ARISTIDES FRANCISCO, individually and on behalf of all others similarly situated, Plaintiff, v. EMERITUS CORPORATION, an unknown corporation; BROOKDALE SENIOR LIVING COMMUNITIES, INC., an unknown corporation, and DOES 1 through 50, inclusive, Defendant. Case No. 17-cv-02871 PSG (GJSx) DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS OR, IN THE ALTERNATIVE, MOTION FOR A MORE DEFINITE STATEMENT [FED. R. CIV. PROC. 12(B)(6), 12(E)] Hearing Date: June 26, 2017 Time: 1:30 p.m. Place: Courtroom 6A Complaint Filed: March 16, 2017 (removed from Los Angeles Superior Court) Case 2:17-cv-02871-PSG-GJS Document 11 Filed 04/21/17 Page 1 of 3 Page ID #:134 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 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. TO PLAINTIFF ARISTIDES FRANCISCO AND HIS ATTORNEYS OF RECORD: YOU ARE HEREBY NOTICED THAT on June 26, 2017, at 1:30 p.m., or as soon thereafter as counsel may be heard by Judge Philip S. Gutierrez in Courtroom 6A, of the above-entitled Court, located at 350 West 1st Street, 6th Floor, Los Angeles, California 90012-4565, Defendants EMERITUS CORPORATION and BROOKDALE SENIOR LIVING COMMUNITIES, INC. (“Defendants”) will and hereby do move the Court for the following relief: (1) For an Order dismissing Plaintiff Aristides Francisco’s (“Plaintiff”) Complaint in its entirety, as Plaintiff has failed to state a claim upon which relief can be granted under the federal pleading standard, pursuant to Federal Rule of Civil Procedure 12(b)(6). Plaintiff has failed to satisfy the pleading standards set forth by Federal Rule of Civil Procedure 8(a)(2) and the United States Supreme Court in Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), because the claims are based upon pure speculation and are not supported by any factual allegations; (2) In the Alternative, for an Order requiring Plaintiff to provide a more definite statement for his claims, pursuant to Federal Rule of Civil Procedure 12(e). This Motion is made following the conference of counsel pursuant to L.R. 7-3, which took place on April 14, 2017. This Motion is based upon this Notice of Motion and Motion, the supporting Memorandum of Points and Authorities, and all pleadings and papers on file in this action, and upon such other matters as may be presented to the Court at hearing. Case 2:17-cv-02871-PSG-GJS Document 11 Filed 04/21/17 Page 2 of 3 Page ID #:135 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 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 3. Dated: April 21, 2017 /s/ Shannon R. Boyce Shannon R. Boyce LITTLER MENDELSON, P.C. Attorneys for Defendants EMERITUS CORPORATION AND BROOKDALE SENIOR LIVING COMMUNITIES, INC. Firmwide:147214316.1 051918.1000 Case 2:17-cv-02871-PSG-GJS Document 11 Filed 04/21/17 Page 3 of 3 Page ID #:136 LITTLER MENDELSON, P .C . 2 0 4 9 C e n t u r y P a r k E a s t 5 t h F l o o r L o s A n g e l e s , C A 9 0 0 6 7 . 3 1 0 7 3 1 0 . 5 5 3 . 0 3 0 8 1. 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 J. KEVIN LILLY, Bar No. 119981 klilly@littler.com SHANNON R. BOYCE, Bar No. 229041 sboyce@littler.com LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 Telephone: 310.553.0308 Facsimile: 310.553.5583 Attorneys for Defendants EMERITUS CORPORATION AND BROOKDALE SENIOR LIVING COMMUNITIES, INC. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA ARISTIDES FRANCISCO, individually and on behalf of all others similarly situated,, Plaintiff, v. EMERITUS CORPORATION, an unknown corporation; BROOKDALE SENIOR LIVING COMMUNITIES, INC., an unknown corporation, and DOES 1 through 50, inclusive, Defendant. Case No. 17-cv-02871 PSG (GJSx) DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS OR, IN THE ALTERNATIVE, MOTION FOR A MORE DEFINITE STATEMENT [FED. R. CIV. PROC. 12(B)(6), 12(E)] Hearing Date: June 26, 2017 Time: 1:30 p.m. Place: Courtroom 6A Complaint Filed: March 16, 2017 (removed from Los Angeles Superior Court) Case 2:17-cv-02871-PSG-GJS Document 11-1 Filed 04/21/17 Page 1 of 11 Page ID #:137 LITTLER MENDELSON, P .C . 3 3 3 B u s h S t r e e t 3 4 t h F l o o r S a n F r a n c i s c o , C A 9 4 1 0 4 4 1 5 . 4 3 3 . 1 9 4 0 TABLE OF CONTENTS PAGE i.. 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. INTRODUCTION ............................................................................................... 1 II. STATEMENT OF ALLEGATIONS .................................................................. 1 III. PLAINTIFF’S COMPLAINT FAILS TO SATISFY THE FEDERAL PLEADING STANDARD .................................................................................. 3 A. Plaintiff’s Complaint Should Be Dismissed For Failure To State A Claim Pursuant to Federal Rule Of Civil Procedure 12(b)(6). ................. 3 1. The Federal Pleading Standard ....................................................... 3 2. Plaintiff’s Complaint Is Legally Insufficient Under Twombly And Iqbal And Must Be Dismissed ............................... 4 a. Plaintiff’s Allegations Are Merely Legal Conclusions ........ 4 b. Plaintiff’s Factual Allegations Fail To Establish A Plausible Entitlement To Relief ........................................... 5 B. In the Alternative, Plaintiff Should Be Required To Amend The Complaint To Provide A More Definite Statement, Pursuant To Federal Rule of Civil Procedure 12(e) ...................................................... 7 IV. CONCLUSION ................................................................................................... 7 Case 2:17-cv-02871-PSG-GJS Document 11-1 Filed 04/21/17 Page 2 of 11 Page ID #:138 LITTLER MENDELSON, P .C . 3 3 3 B u s h S t r e e t 3 4 t h F l o o r S a n F r a n c i s c o , C A 9 4 1 0 4 4 1 5 . 4 3 3 . 1 9 4 0 TABLE OF AUTHORITIES PAGE ii. 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 Cases Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) ................................................................................... 1, 4, 6, 7 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)........................................................................................... 3, 4, 5 Federal Sv. And Loan Ins. Corp. v. Musacchio, 695 F. Supp. 1053 (N.D. Cal. 1988) .......................................................................... 7 Moss v. U.S. Secret Serv., 572 F.3d 962 (9th Cir. 2009) ..................................................................................... 5 Papasan v. Allain, 478 U.S. 265 (1986)................................................................................................... 5 Statutes Business and Professions Code Section 17200, et seq. .................................................. 1 California Labor Code 203 ............................................................................................. 1 California Labor Code Section 226 ................................................................................ 1 California Labor Code Sections 512 ............................................................................... 1 California Labor Code Sections 510 ............................................................................... 1 California Labor Code Sections 194 ............................................................................... 1 Other Authorities Federal Rule of Civil Procedure 8(a)(2) ......................................................................... 3 Federal Rule of Civil Procedure 12(b)(6) ........................................................... 1, 3, 7, 8 Federal Rule of Civil Procedure 12(e) .................................................................... 1, 7, 8 Case 2:17-cv-02871-PSG-GJS Document 11-1 Filed 04/21/17 Page 3 of 11 Page ID #:139 LITTLER MENDELSON, P .C . 2 0 4 9 C e n t u r y P a r k E a s t 5 t h F l o o r L o s A n g e l e s , C A 9 0 0 6 7 . 3 1 0 7 3 1 0 . 5 5 3 . 0 3 0 8 1. 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. INTRODUCTION Plaintiff Aristides Francisco filed the instant putative class action against his former employer, Emeritus Corporation, as well as separate corporate entity, Brookdale Senior Living Communities, Inc., alleging the kitchen sink of wage and hour violations under the California Labor Code. Plaintiff, however, fails to plead any facts whatsoever in support of his claims, let alone sufficient facts to allow the Court to reasonably conclude that his allegations are more than a sheer possibility. Instead, Plaintiff merely recites the elements of each of his claims and makes conclusory allegations that Defendants purportedly violated the law. The Complaint therefore offers nothing more than “unadorned, the defendant-unlawfully-harmed-me accusation[s],” which are insufficient to satisfy the federal pleading standard. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Accordingly, Plaintiff’s Complaint should be dismissed in its entirety for failure to state a claim, pursuant to Federal Rule of Civil Procedure 12(b)(6). Alternatively, Plaintiff should be ordered to provide a more definite statement of his claims, pursuant to Federal Rule of Civil Procedure 12(e). II. STATEMENT OF ALLEGATIONS On March 16, 2017, Plaintiff Aristides Francisco (“Plaintiff”) filed a Complaint in the Superior Court of California, County of Los Angeles, against Defendants Emeritus Corporation and Brookdale Senior Living Communities, Inc. (collectively, “Defendants”), which Defendants subsequently removed to this Court. (Dkt. No. 1.) Plaintiff brings this action on behalf of himself and a putative class of all non-exempt employees of Defendants in the State of California, and asserts claims for: (1) Violation of Labor Code Sections 226.7 and 512; (2) Violation of Labor Code Sections 510 and 1194; (3) Violation of Labor Code Section 226; (4) Violation of Labor Code 203; and (5) Business and Professions Code Section 17200, et seq. (See Dkt. No. 1.1 (“Complaint”).) Case 2:17-cv-02871-PSG-GJS Document 11-1 Filed 04/21/17 Page 4 of 11 Page ID #:140 LITTLER MENDELSON, P .C . 2 0 4 9 C e n t u r y P a r k E a s t 5 t h F l o o r L o s A n g e l e s , C A 9 0 0 6 7 . 3 1 0 7 3 1 0 . 5 5 3 . 0 3 0 8 2. 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 Plaintiff proffers only the following to support his allegations: • Plaintiff Aristides Francisco is an individual residing in the State of California. (Complaint ¶ 9.) • Plaintiff Francisco was formerly employed by Defendants in a non- exempt hourly-paid position during the statutory period. (Complaint ¶ 9.) • Defendant Emeritus Corporation is an unknown business entity licensed to do business and actually doing business in the State of California. (Complaint ¶ 10.) • Defendant Brookdale Senior Living Communities, Inc. is an unknown business entity licensed to do business and actually doing business in the State of California. (Complaint ¶ 11.) Plaintiff fails to assert any additional factual allegations in support of his claims. The remaining allegations, which are identified below, are merely legal conclusions couched as facts, and Plaintiff has provided no further detail regarding these claims. The Complaint is devoid of examples of specific calculations, estimates or examples of Defendants’ purported wage and hour violations, or any other information that would allow Defendants to understand the basis for Plaintiff’s class allegations or make their own calculations. Instead, Plaintiff alleges: • As a pattern and practice, Defendants did not provide employees with duty-free, legally-compliant meal periods and rest breaks and did not provide proper compensation for this failure. (Complaint ¶ 29.) • As a pattern and practice, Defendants regularly failed to compensate employees their minimum wages and overtime wages, where applicable, for all hours worked, including for the time spent working through recorded meal periods (Complaint ¶ 34.) • As a result of Defendants’ various Labor Code violations, Defendants failed to keep accurate records of Plaintiff and Class Members’ gross wages earned, total hours worked, net wages earned, and all applicable Case 2:17-cv-02871-PSG-GJS Document 11-1 Filed 04/21/17 Page 5 of 11 Page ID #:141 LITTLER MENDELSON, P .C . 2 0 4 9 C e n t u r y P a r k E a s t 5 t h F l o o r L o s A n g e l e s , C A 9 0 0 6 7 . 3 1 0 7 3 1 0 . 5 5 3 . 0 3 0 8 3. 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 hourly rates and the number of hours worked at each hourly rate. (Complaint ¶ 37.) • As a result of Defendants’ alleged Labor Code violations, Defendants regularly failed to pay Plaintiff and the Class and Subclasses their final wages. (Complaint ¶ 41.) • Defendants, and each of them, have engaged and continue to engage in unfair and unlawful business practices by knowingly denying employees: (1) all meal period wages and rest break wages; (2) all overtime and minimum wages; (3) vested vacation wages; (4) accurate wage statements; and (5) all wages due and owing upon termination of employment. (Complaint, ¶ 45.) III. PLAINTIFF’S COMPLAINT FAILS TO SATISFY THE FEDERAL PLEADING STANDARD. A. Plaintiff’s Complaint Should Be Dismissed For Failure To State A Claim Pursuant to Federal Rule Of Civil Procedure 12(b)(6).1 1. The Federal Pleading Standard. Plaintiff’s factually-devoid Complaint does not meet the pleading standards of Federal Rule of Civil Procedure 8(a)(2), and therefore fails to state a claim under which relief can be granted and should be dismissed under Federal Rule of Civil Procedure 12(b)(6). As explained by the United States Supreme Court, a motion to dismiss is properly granted when a complaint offers nothing “more than labels and conclusions,” as “a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. A complaint must contain enough “facts to state a claim to relief that is plausible on its face,” and the factual allegations “must be enough to raise a right to relief above the speculative level.” Id. at 555, 570. 1 This Motion is made following the conference of counsel pursuant to L.R. 7-3, which took place on April 14, 2017. See Declaration of Shannon R. Boyce, ¶ 2, filed concurrently herewith. Case 2:17-cv-02871-PSG-GJS Document 11-1 Filed 04/21/17 Page 6 of 11 Page ID #:142 LITTLER MENDELSON, P .C . 2 0 4 9 C e n t u r y P a r k E a s t 5 t h F l o o r L o s A n g e l e s , C A 9 0 0 6 7 . 3 1 0 7 3 1 0 . 5 5 3 . 0 3 0 8 4. 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 While the pleading standard under Rule 8 “does not require ‘detailed factual allegations,’ [] it demands more than unadorned, the defendant-unlawfully-harmed-me accusation.” Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 555). A complaint that offers “‘naked assertion[s] devoid of “further factual enhancement” is insufficient. Id. (quoting Twombly, 550 U.S. at 557). As the Supreme Court explained: To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draft the reasonable inference that the defendant is liable for the misconduct alleged. 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. Where a complaint pleads facts that are “merely consistent with” a defendant’s liability, it “stops short of the line between possibility and plausibility of ‘entitlement to relief.’”2 2. Plaintiff’s Complaint Is Legally Insufficient Under Twombly And Iqbal And Must Be Dismissed. The United States Supreme Court established in Iqbal a two-step method for evaluating motions to dismiss. First, a reviewing court must determine which averments are merely legal conclusions and which are factual assertions. When there are well-pleaded allegations, a court should assume their veracity. Iqbal, 556 U.S. at 1950. Second, the court must consider whether the factual allegations facially and plausibly suggest an entitlement to relief. Id. Here, Plaintiff’s Complaint consists of a scant few elementary facts, along with unsupported legal conclusions, wholly insufficient to establish any plausible entitlement to relief. a. Plaintiff’s Allegations Are Merely Legal Conclusions. Plaintiff’s Complaint contains nothing more than “an unadorned, the defendant- unlawfully-harmed-me accusation.” Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 2 Id. (quoting Twombly, 550 U.S. at 556-57, 570) (citations omitted). Case 2:17-cv-02871-PSG-GJS Document 11-1 Filed 04/21/17 Page 7 of 11 Page ID #:143 LITTLER MENDELSON, P .C . 2 0 4 9 C e n t u r y P a r k E a s t 5 t h F l o o r L o s A n g e l e s , C A 9 0 0 6 7 . 3 1 0 7 3 1 0 . 5 5 3 . 0 3 0 8 5. 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 U.S. at 555.) As outlined above, Plaintiff simply lists the elements of his wage and hour claims and makes conclusory statements, without elucidating any specific facts that would establish the plausibility for such claims. For example, Plaintiff generally alleges that Defendants “regularly failed to compensate employees their minimum and overtime wages, where applicable, for all hours worked, including for time spent working through recorded meal periods.” (Complaint, ¶ 34.) This is simply a recitation of a necessary element of a claim for unpaid wages, and these threadbare allegations are insufficient to defeat a motion to dismiss. Plaintiff asserts “labels and conclusions” in all of his causes of action, and makes similarly sweeping - and insufficient - allegations that non-exempt employees in California were subject to wage and hour violations. Twombly, 550 U.S. at 555. In yet another example, Plaintiff blindly alleges that he and other non-exempt employees did not receive duty-free, legally-compliant meal periods and rest breaks, and that Defendants did not provide compensation for this purported failure. (Complaint ¶ 29.) In so alleging, Plaintiff fails to identify any policy or practice, or any reason whatsoever that such meal periods and rest breaks were purportedly not provided to Plaintiff and other members of the putative class. This simple legal conclusion does not suffice, and is insufficient to defeat a motion to dismiss. See Papasan v. Allain, 478 U.S. 265, 286 (1986) (the Court is not “bound to accept as true a legal conclusion couched as a factual allegation.”) b. Plaintiff’s Factual Allegations Fail To Establish A Plausible Entitlement To Relief. Given that the plethora of legal conclusions contained in the Complaint must be disregarded for purposes of this motion, to survive, “the non-conclusory factual content, and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief.” Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). Here, however, the Complaint has no specific factual allegation that would “permit the Court to infer more than the mere possibility of misconduct.” Case 2:17-cv-02871-PSG-GJS Document 11-1 Filed 04/21/17 Page 8 of 11 Page ID #:144 LITTLER MENDELSON, P .C . 2 0 4 9 C e n t u r y P a r k E a s t 5 t h F l o o r L o s A n g e l e s , C A 9 0 0 6 7 . 3 1 0 7 3 1 0 . 5 5 3 . 0 3 0 8 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 Iqbal, 129 S. Ct. at 1950. The only truly “factual” allegations in the Complaint relate to the most basic details - that Plaintiff is a resident of California, and that the named Defendants conduct business in California. (Complaint ¶¶ 9-11.) Plaintiff does not even specify his dates of employment in the Complaint. Plaintiff’s failure to do so may very well be strategic. Indeed, as noted in Defendants’ removal papers, Plaintiff was never employed by Brookdale Senior Living Communities, Inc. Further, his employment with Emeritus Corporation ended on September 29, 2013, which means his first four causes of action are time barred. (Dkt. No. 1.) Plaintiff has not shown any specific facts establishing that he, let alone each and every non-exempt employee in California, is entitled to payments for overtime, minimum wage, missed meal or rest breaks, inaccurate wage statements, and/or waiting time penalties. In other words, Plaintiff has not even attempted to provide the factual basis that would make his claims plausible, let alone those of the putative class. Plaintiff fails to allege the number of hours worked each week, the total amounts of compensation received during pay periods in which Plaintiff alleges he was not paid minimum wage or overtime, or the total number of overtime hours worked. Nor does Plaintiff allege how many meal or rest breaks he did not receive, or why breaks he did receive were not compliant. Plaintiff does not explain why his wage statements allegedly do not contain all hours worked, or provide a single example identifying that issue or any others. Nor does Plaintiff state whether or not he was paid any wages at the time of his termination, when those wages were paid, and what, if anything, was missing from that payment. Plaintiff has simply failed to provide any description of the legal theories on which his claims are based, nor any other factual enhancements that would make his claims plausible. Finally, Plaintiff’s conclusory allegation that Defendants failed to compensate Plaintiff and the putative class for all hours worked, missed meal periods and/or rest breaks pursuant to “a pattern and practice” fails to move his claims from a “sheer Case 2:17-cv-02871-PSG-GJS Document 11-1 Filed 04/21/17 Page 9 of 11 Page ID #:145 LITTLER MENDELSON, P .C . 2 0 4 9 C e n t u r y P a r k E a s t 5 t h F l o o r L o s A n g e l e s , C A 9 0 0 6 7 . 3 1 0 7 3 1 0 . 5 5 3 . 0 3 0 8 7. 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 possibility” into plausible. Plaintiff provides no details or evidence of such a policy or practice. Instead, Plaintiff pleads facts that are “merely consistent with” Defendants’ purported liability, but he “stops short of the line between possibility and plausibility of ‘entitlement to relief.’” Iqbal, 129 S. Ct. at 1949. Accordingly, the Complaint should be dismissed in its entirety for failure to state a claim, pursuant to Federal Rule of Civil Procedure 12(b)(6). B. In the Alternative, Plaintiff Should Be Required To Amend The Complaint To Provide A More Definite Statement, Pursuant To Federal Rule of Civil Procedure 12(e). Should the Court decline to dismiss Plaintiff’s Complaint under Federal Rule of Civil Procedure 12(b)(6), Defendants request that, pursuant to Federal Rule of Civil Procedure 12(e), Plaintiff be ordered to provide a more definite statement of his claims, including his dates of employment. Where a complaint is “so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, the party may move for a more definite statement before interposing a responsive pleading.” Fed. R. Civ. Proc. 12(e). “The proper test in evaluating a motion under Rule 12(e) is whether the complaint provides the defendant with a sufficient basis to frame his responsive pleadings.” Federal Sv. And Loan Ins. Corp. v. Musacchio, 695 F. Supp. 1053, 1060 (N.D. Cal. 1988). As set forth above, Plaintiff’s Complaint is vague, ambiguous, and devoid of factual allegations. This makes it impossible for Defendants to prepare a meaningful response to Plaintiff’s claims. To be able to respond to Plaintiff’s allegations, Defendants require more than simple recitation of the elements of Plaintiff’s causes of action. Rather, Plaintiff must show, in some plausible way, that his claims are warranted. Thus, Defendants hereby move, in the alternative, for a more definite statement, pursuant to Federal Rule of Civil Procedure 12(e). IV. CONCLUSION For the foregoing reasons, Defendants respectfully request that the Court dismiss Plaintiff’s claims in their entirety, as Plaintiff has failed to state a claim upon Case 2:17-cv-02871-PSG-GJS Document 11-1 Filed 04/21/17 Page 10 of 11 Page ID #:146 LITTLER MENDELSON, P .C . 2 0 4 9 C e n t u r y P a r k E a s t 5 t h F l o o r L o s A n g e l e s , C A 9 0 0 6 7 . 3 1 0 7 3 1 0 . 5 5 3 . 0 3 0 8 8. 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 which relief can be granted under the federal pleading standard, pursuant to Federal Rule of Civil Procedure 12(b)(6). Alternatively, Defendants respectfully request that the Court order Plaintiff to provide a more definite statement for his claims, pursuant to Federal Rule of Civil Procedure 12(e). Dated: April 21, 2017 /s/ Shannon R. Boyce J. KEVIN LILLY LITTLER MENDELSON, P.C. Attorneys for Defendants EMERITUS CORPORATION and BROOKDALE SENIOR LIVING COMMUNITIES, INC Firmwide:147184464.1 051918.1000 Case 2:17-cv-02871-PSG-GJS Document 11-1 Filed 04/21/17 Page 11 of 11 Page ID #:147 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 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 J. KEVIN LILLY, Bar No. 119981 klilly@littler.com SHANNON R. BOYCE, Bar No. 229041 sboyce@littler.com LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 Telephone: 310.553.0308 Facsimile: 310.553.5583 Attorneys for Defendants EMERITUS CORPORATION AND BROOKDALE SENIOR LIVING COMMUNITIES, INC. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA ARISTIDES FRANCISCO, individually and on behalf of all others similarly situated,, Plaintiff, v. EMERITUS CORPORATION, an unknown corporation; BROOKDALE SENIOR LIVING COMMUNITIES, INC., an unknown corporation, and DOES 1 through 50, inclusive, Defendant. Case No. 17-cv-02871 PSG (GJSx) DECLARATION OF SHANNON R. BOYCE IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS OR, IN THE ALTERNATIVE, MOTION FOR A MORE DEFINITE STATEMENT [FED. R. CIV. PROC. 12(B)(6), 12(E)] Hearing Date: June 26, 2017 Time: 1:30 p.m. Place: Courtroom 6A Complaint Filed: March 16, 2017 (removed from Los Angeles Superior Court) Case 2:17-cv-02871-PSG-GJS Document 11-2 Filed 04/21/17 Page 1 of 6 Page ID #:148 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 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 1. I, SHANNON R. BOYCE, declare and state: 1. I am a Shareholder with Littler Mendelson, P.C., counsel of record for Defendants Emeritus Corporation and Brookdale Senior Living Communities, Inc. (collectively, “Defendants”) in connection with the above-captioned matter. I am licensed to practice before the courts of the State of California and in the United States District Court, Central District of California. I am familiar with the correspondence and pleadings on file in this action. Unless otherwise stated, all of the information in this declaration is based upon my personal knowledge, and if called as a witness I could and would competently testify thereto. 2. Pursuant to Local Rule 7-3, I sent correspondence to Plaintiff’s counsel in this matter on Friday, April 14, 2017, which detailed the substance of the instant motion and asked that counsel contact me to discuss the matter in further detail. Attached hereto as Exhibit A is a true and correct copy of my correspondence to counsel, to which I received no response. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed this 21st day of April, 2017, at Los Angeles, California. /s/ Shannon R. Boyce SHANNON R. BOYCE Firmwide:147220292.1 051918.1000 Case 2:17-cv-02871-PSG-GJS Document 11-2 Filed 04/21/17 Page 2 of 6 Page ID #:149 Case 2:17-cv-02871-PSG-GJS Document 11-2 Filed 04/21/17 Page 3 of 6 Page ID #:150 Case 2:17-cv-02871-PSG-GJS Document 11-2 Filed 04/21/17 Page 4 of 6 Page ID #:151 Case 2:17-cv-02871-PSG-GJS Document 11-2 Filed 04/21/17 Page 5 of 6 Page ID #:152 Case 2:17-cv-02871-PSG-GJS Document 11-2 Filed 04/21/17 Page 6 of 6 Page ID #:153 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 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 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA ARISTIDES FRANCISCO, individually and on behalf of all others similarly situated, Plaintiff, v. EMERITUS CORPORATION, an unknown corporation; BROOKDALE SENIOR LIVING COMMUNITIES, INC., an unknown corporation, and DOES 1 through 50, inclusive, Defendant. Case No. 17-cv-02871 PSG (GJSx) [PROPOSED] ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS OR, IN THE ALTERNATIVE, MOTION FOR A MORE DEFINITE STATEMENT [FED. R. CIV. PROC. 12(B)(6), 12(E)] Hearing Date: June 26, 2017 Time: 1:30 p.m. Place: Courtroom 6A Complaint Filed: March 16, 2017 (removed from Los Angeles Superior Court) Case 2:17-cv-02871-PSG-GJS Document 11-3 Filed 04/21/17 Page 1 of 3 Page ID #:154 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 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. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA ARISTIDES FRANCISCO, individually and on behalf of all others similarly situated, Plaintiff, v. EMERITUS CORPORATION, an unknown corporation; BROOKDALE SENIOR LIVING COMMUNITIES, INC., an unknown corporation, and DOES 1 through 50, inclusive, Defendant. Case No. 17-cv-02871 PSG (GJSx) [PROPOSED] ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS OR, IN THE ALTERNATIVE, MOTION FOR A MORE DEFINITE STATEMENT [FED. R. CIV. PROC. 12(B)(6), 12(E)] Hearing Date: June 26, 2017 Time: 1:30 p.m. Place: Courtroom 6A Complaint Filed: March 16, 2017 (removed from Los Angeles Superior Court) Case 2:17-cv-02871-PSG-GJS Document 11-3 Filed 04/21/17 Page 2 of 3 Page ID #:155 LITTLER MENDELSON, P.C. 2049 Century Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 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 3. Defendants Emeritus Corporation and Brookdale Senior Living Communities, Inc.’s (“Defendants”) motion to dismiss the Complaint of Plaintiff Aristides Francisco (“Plaintiff”) or, in the alternative, motion for a more definite statement, came on regularly for hearing before the Hon. Philip S. Gutierrez in Courtroom 6A of the above-entitled Court on June 26, 2017. After considering the moving papers, the papers submitted in opposition to the motion, the paper(s) submitted in reply to the opposition, arguments of counsel and all other matters presented to the Court, IT IS HEREBY ORDERED AS FOLLOWS: Defendants’ motion to dismiss is GRANTED. Plaintiff’s Complaint fails to satisfy the pleading standards set forth by Federal Rule of Civil Procedure 8(a)(2) and the United States Supreme Court in Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), because the claims are based upon pure speculation and are not supported by any factual allegations, and the Complaint is therefore dismissed in its entirety pursuant to Federal Rule of Civil Procedure 12(b)(6). Plaintiff is hereby granted leave to amend his Complaint, subject to the limitations below. (ALTERNATIVELY) Plaintiff is hereby ORDERED to provide a more definite statement for his claims, pursuant to Federal Rule of Civil Procedure 12(e). IT IS SO ORDERED. Dated: UNITED STATES DISTRICT COURT JUDGE PHILIP S. GUTIERREZ Firmwide:147219699.1 051918.1000 Case 2:17-cv-02871-PSG-GJS Document 11-3 Filed 04/21/17 Page 3 of 3 Page ID #:156