Colson v. Avnet, Inc.

MOTION to Dismiss Case Plaintiff's First Amended Complaint Pursuant to Federal Rule of Civil Procedure 12

D. Ariz.July 23, 2009

2219594.1/12444.041 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 FENNEMORE CRAIG, P.C. Janice Procter-Murphy (No. 013078) Jessica L. Catlett (No. 024790) 3003 North Central Avenue, Suite 2600 Phoenix, AZ 85012-2913 Telephone: (602) 916-5000 Fax: (602) 916-5999 Email: jpmurphy@fclaw.com Email: jcatlett@fclaw.com GIBSON, DUNN & CRUTCHER LLP Eugene Scalia (CA Bar No. 151540)* Julian W. Poon (CA Bar No. 219843)* Jesse A. Cripps, Jr. (CA Bar No. 222285)* Margaret A. Farrand (CA Bar No. 235295)* 333 South Grand Avenue Los Angeles, CA 90071-3197 Telephone: (213) 229-7000 Fax: (213) 229-7520 Email: escalia@gibsondunn.com Email: jpoon@gibsondunn.com Email: jcripps@gibsondunn.com Email: mfarrand@gibsondunn.com *Admitted Pro Hac Vice Attorneys for Defendant Avnet, Inc. UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA MICHELLE COLSON, on behalf of herself and all others similarly situated, Plaintiff, v. AVNET, INC., Defendant. CASE NO. 2:09-cv-00603-PHX-MHM DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 12(b)(6), AND STRIKE PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 12(f) ORAL ARGUMENT REQUESTED Case 2:09-cv-00603-MHM Document 83 Filed 07/23/09 Page 1 of 25 - i - 2219594.1/12444.041 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. PROCEDURAL HISTORY AND SUMMARY OF ALLEGATIONS ..................1 A. Plaintiff’s Assertion That She Was Misclassified As Exempt. ....................2 B. Plaintiff’s Allegations Regarding Her Job Duties and Those Of Other SMRs. ........................................................................................................2 C. Plaintiff’s Class Allegations........................................................................3 III. PLAINTIFF’S BURDEN AT THE PLEADINGS STAGE....................................3 IV. ARGUMENT........................................................................................................4 A. Plaintiff Fails To Plead Sufficient Facts To Make Her Overtime Claims Plausible. ........................................................................................4 1. Plaintiff Fails To Plausibly Allege Misclassification........................5 2. Plaintiff Fails To Adequately Allege That She Or Other SMRs Were “Similarly Situated.”....................................................7 3. Plaintiff Fails To Adequately Allege That Avnet Acted “Willfully.”......................................................................................9 B. Plaintiff’s State-Law Claims Conflict With The FLSA’s “Opt-Out” Class And Remedial Scheme, And Therefore Are Preempted. ..................10 1. Plaintiff Impermissibly Seeks An Opt-Out Class. ..........................10 2. Plaintiff Seeks Remedies That Would Disrupt the FLSA’s Comprehensive Remedial Scheme. ................................................11 C. Plaintiff’s Extraterritorial Arizona-Law Claim Should Be Dismissed Or Stricken. ..............................................................................................13 1. Plaintiff Does Not Qualify As An “Employee” Under A.R.S. § 23-350. .......................................................................................13 2. Plaintiff Did Not “Perform” Any Employment Contract In Arizona. .........................................................................................14 D. Plaintiff Lacks Standing To Pursue Injunctive Relief................................17 V. CONCLUSION...................................................................................................17 Case 2:09-cv-00603-MHM Document 83 Filed 07/23/09 Page 2 of 25 - ii - 2219594.1/12444.041 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) CASES Anderson v. Sara Lee Corp., 508 F.3d 181 (4th Cir. 2007) .............................................................................. 11, 12 Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009)......................................................................3, 4, 5, 7, 9, 15, 17 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) ......................................................................................... 3, 4, 17 Cayuga Construction Co. v. Vanco Engineering Co., 423 F. Supp. 1182 (W.D. Pa. 1976) .......................................................................... 14 City of Glendale v. Coquat, 46 Ariz. 478 (1935) .................................................................................................. 15 City of Los Angeles v. Lyons, 461 U.S. 95 (1983) ................................................................................................... 17 Clark v. Martinez, 543 U.S. 371 2005)................................................................................................... 17 Cohen v. First National Bank, 22 Ariz. 394 (1921) .................................................................................................. 14 Collins v. Am. Buslines, Inc., 286 P.2d 214 (Ariz. 1955), rev’d on other grounds, 350 U.S. 528 (1956) ................. 15 De Asencio v. Tyson Foods, Inc., 342 F.3d 301 (3d Cir. 2003)...................................................................................... 11 De Luna-Guerrero v. North Carolina Grower’s Assn., Inc., 370 F. Supp. 2d 386 (E.D.N.C. 2005) .........................................................................9 DeBremaecker v. Scott, 433 F.2d 733 (5th Cir. 1970) ......................................................................................8 Desert Wide Cabling & Installation, Inc. v. Wells Fargo & Co., 191 Ariz. 516 (1998) ................................................................................................ 15 Doe v. Wal-Mart Stores, Inc., 2009 U.S. App. LEXIS 15279 (9th Cir. July 10, 2009) ...............................................5 Ellis v. Edward D. Jones & Co, L.P., 527 F. Supp. 2d 439 (W.D. Pa. 2007) ....................................................................... 10 Evancho v. Sanofi-Aventis U.S., Inc., 2007 WL 4546100 (D.N.J. 2007).............................................................................. 10 Filson v. Bell Telephone Labs, Inc., 186 A.2d 320 (N.J. Co. 1962)................................................................................... 14 Case 2:09-cv-00603-MHM Document 83 Filed 07/23/09 Page 3 of 25 - iii - 2219594.1/12444.041 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 Flores v. Albertson’s, Inc., 2003 WL 24216269 (C.D. Cal. Dec. 9, 2003) ........................................................... 12 Frey v. Spokane County Fire Dist. No. 8, 2006 WL 2597956 (E.D. Wash. Sept. 11, 2006) ....................................................... 12 Gilstrap v. Synalloy Corp., 409 F. Supp. 621 (M.D. La. 1976) ..............................................................................7 Hodgson v. Penn Packing Co., 335 F. Supp. 1015 (E.D. Pa. 1971) .............................................................................7 Hyatt Chalet Motels, Inc. v. Carpenters Local 1065, 430 F.2d 1119 (9th Cir. 1970).....................................................................................6 In re Marriage of Reich, 32 P.3d 904 (Or. App. 2001)............................................................................... 13, 14 In re: Wells Fargo Home Mortgage, 2009 U.S. App. LEXIS 14864 (9th Cir. July 7, 2009) .................................................7 Indust. Truck Ass’n, Inc. v. Henry, 125 F.3d 1305 (9th Cir. 1997)................................................................................... 10 LaChappelle v. Berkshire Life Ins. Co., 142 F.3d 507 (1st Cir. 1998).......................................................................................6 Lanzarone v. Guardsmark Holdings, Inc., 2006 WL 4393465 (C.D. Cal. Sept. 7, 2006) ............................................................ 17 LePage v. Blue Cross and Blue Shield of Minnesota, 2008 WL 2570815 (D. Minn. 2008) ...........................................................................6 Lerwill v. Inflight Motion Pictures, Inc., 343 F. Supp. 1027 (N.D. Cal. 1972) ......................................................................... 13 Mateo v. M/S Kiso, 805 F. Supp. 761 (N.D. Cal. 1991) .............................................................................8 Mazur v. EBay, Inc., 2009 WL 1203937 (N.D. Cal. May 5, 2009)...............................................................8 McLaughlin v. Richland Shoe Co., 486 U.S. 128 (1988) ...................................................................................................9 Mir v. Little Co. of Mary Hosp., 844 F.2d 646 (9th Cir. 1988) ......................................................................................9 Mitchell v. Abercrombie & Fitch, 2005 WL 1159412 (S.D. Ohio, May 17, 2005) ......................................................... 16 Moeck v. Gray Supply Corp., 2006 WL 42368 (D.N.J. Jan. 6, 2006) ...................................................................... 12 Muhammad v. Oliver, 547 F.3d 874 (7th Cir. 2008) ......................................................................................6 Case 2:09-cv-00603-MHM Document 83 Filed 07/23/09 Page 4 of 25 - iv - 2219594.1/12444.041 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 National Collegiate Athletic Ass’n v. Miller, 10 F.3d 633 (9th Cir. 1993) ...................................................................................... 16 Nimmons v. RBC Ins. Holdings (USA) Inc., 2007 WL 4571179 (D.S.C. Dec. 27, 2007) ............................................................... 12 Norkunas v. Cochran, 895 A.2d 1101 (Md. App. 2006)............................................................................... 14 Panos v. Timco Engine Center, Inc., 2009 WL 1658416 (N.C. App. June 16, 2009).......................................................... 16 Pelican State Phys. Therapy, LP v. Bratton, 2007 WL 2833303 (Tex. App. Sept. 27, 2007) ......................................................... 16 Perez v. Time Moving & Storage, Inc., 2009 U.S. Dist. LEXIS 17065 (S.D.N.Y. Jan. 16, 2009) .............................................4 Powell v. Florida, 132 F.3d 677 (11th Cir. 1998)................................................................................... 17 Redhair v. Kinerk, Beal, Schmidt, Dyer & Sethi, 218 Ariz. 293 (2008) ................................................................................................ 15 Reich v. John Alden Life Ins. Co., 126 F.3d 1 (1st Cir. 1997)....................................................................................... 2, 7 Richardson Construction, Inc. v. Clark County School Dist., 223 Fed. Appx. 731 (9th Cir. 2007) ............................................................................6 Roman v. Maietta Construction, Inc., 147 F.3d 71 (1st Cir. 1998)................................................................................. 11, 12 Ryan v. Indust. Comm’n of Arizona, 127 Ariz. 607 (Ariz. App. 1981) ............................................................................... 13 Service Employees Intern. Union, Local 102 v. County of San Diego, 60 F.3d 1346 (9th Cir. 1994) ......................................................................................9 South Ridge Baptist Church v. Industrial Com’n of Ohio, 911 F.2d 1203 (6th Cir. 1990)................................................................................... 16 State ex rel. Nilsen v. Lee, 251 Or. 284 (1968) .....................................................................................................9 State Farm Mut. Auto Ins. Co. v. Campbell, 538 U.S. 408 (2003) ................................................................................................. 16 Vinole v. Countrywide Home Loans, Inc., 2009 WL 1926444 *9 (9th Cir. July 7, 2009).......................................................... 4, 8 Williamson v. General Dynamics Corporation, 208 F.3d 1144 (9th Cir. 2000)................................................................................... 12 Wilshin v. Allstate Insurance Co., 212 F. Supp. 2d 1360 (M.D. Ga. 2002).......................................................................7 Case 2:09-cv-00603-MHM Document 83 Filed 07/23/09 Page 5 of 25 - v - 2219594.1/12444.041 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 Woodard v. FedEx Freight East, Inc., 250 F.R.D. 178 (M.D. Pa. 2008)............................................................................... 10 Xue Lian Lin v. Comprehensive Health Management, Inc., 2009 WL 976835 (S.D.N.Y. 2009) .............................................................................5 Zhong v. August August Corp., 498 F. Supp. 2d 625 (S.D.N.Y. 2007) .........................................................................7 CONSTITUTIONAL PROVISIONS U.S. CONST., ART. VI ................................................................................................. 15 STATUTES 29 U.S.C. § 211 ............................................................................................................. 17 29 U.S.C. § 215-17........................................................................................................ 11 29 U.S.C. § 216(b)............................................................................................... 7, 10, 17 29 U.S.C. § 218 ............................................................................................................. 13 29 U.S.C. § 255(a) ...........................................................................................................9 Ariz. Rev. Stat. § 12-341.01........................................................................................... 17 Ariz. Rev. Stat. § 12-541................................................................................................ 15 Ariz. Rev. Stat. § 23-351.............................................................................. 11, 12, 16, 17 Ariz. Rev. Stat. § 23-352................................................................................................ 16 Ariz. Rev. Stat. § 23-353................................................................................................ 16 Ariz. Rev. Stat. § 23-355.................................................................................... 10, 11, 15 ORS § 652.120 .............................................................................................................. 16 ORS § 652.150 ........................................................................................................ 10, 12 ORS § 653.261 .............................................................................................................. 11 RCWA § 49.48.010 ....................................................................................................... 16 RULES AND REGULATIONS Fed. R. Civ. P. 8......................................................................................................... 4, 17 Fed. R. Civ. P. 9...............................................................................................................9 29 C.F.R. § 541.200.........................................................................................................2 Case 2:09-cv-00603-MHM Document 83 Filed 07/23/09 Page 6 of 25 - vi - 2219594.1/12444.041 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 Fed. R. Civ. P. 12(b)(6)....................................................................................................6 Fed. R. Civ. P. 23........................................................................................................... 10 Oregon Administrative Rules § 839-020-0030 ............................................................... 11 OTHER AUTHORITIES Restatement (Second) of Contracts, § 63 (comment a) ................................................... 14 2 Williston on Contracts, § 6.37 (4th ed. 2009) .............................................................. 14 2 Williston on Contracts, § 6.62 (4th ed. 2009) .............................................................. 14 Case 2:09-cv-00603-MHM Document 83 Filed 07/23/09 Page 7 of 25 - 1 - 2219594.1/12444.041 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 alleges that she and other Sales and Marketing Representatives (“SMRs”) employed by Defendant Avnet, Inc. (“Avnet”) were misclassified as exempt “administrative” employees under the Fair Labor Standards Act (“FLSA”). Yet, even after amending her Complaint, she still fails to plead facts that render this claim plausible. Instead, she continues to rely almost exclusively on bare legal conclusions copied straight from statutes and regulations. When these legal conclusions are stripped away, the facts in her First Amended Complaint (“Complaint” or “FAC”) consist of nothing more than a “part[ial]” list of job duties that point just as strongly towards exempt status as non-exempt status. Plaintiff also continues to overreach. She defines her proposed class to include an amorphous and undefined class of individuals who supposedly “perform substantially the same duties” as herself. She seeks to radically alter the FLSA’s procedures and comprehensive remedial scheme by pursuing state-law penalties on an “opt out” basis, rather than the “opt-in” basis mandated by Congress. She purports to seek far-reaching treble damages under Arizona state law even on behalf of individuals who may never have set foot in this State before. And she seeks injunctive relief that private litigants may not pursue. Her claims thus should be dismissed and/or stricken. II. PROCEDURAL HISTORY AND SUMMARY OF ALLEGATIONS This is Plaintiff’s second attempt to allege facts in support of her FLSA claim. Her Original Complaint purported to seek relief on behalf of a nationwide class of “Sales and Marketing Representative[s]” and all those in “other inside sales position[s].” Original Complaint at ¶ 14 (filed Mar. 25, 2009) (Docket No. 1). Avnet filed a Motion to Dismiss and Strike that Complaint on June 1, 2009. (Docket No. 24 (asserting that conclusory allegations about Plaintiff’s job were insufficient to support her allegation that she was misclassified)).1 Before that motion was heard, however, Plaintiff sought to remedy (and mask) the various defects in her Original Complaint by filing an Amended Complaint on 1 See Docket No. 24, at 7. Avnet also filed, in the alternative, a Motion to Stay, which Avnet requests not be heard until the Court hears oral argument on the instant motion. Case 2:09-cv-00603-MHM Document 83 Filed 07/23/09 Page 8 of 25 - 2 - 2219594.1/12444.041 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 July 6, 2009. However, the few changes that Plaintiff has made have failed to cure many of the fundamental deficiencies in her Original Complaint. A. Plaintiff’s Assertion That She Was Misclassified As Exempt. Plaintiff continues to put her “exempt” status squarely at issue by alleging that she and others were misclassified “as ‘administrative’ employees who are exempt from the overtime requirements of the FLSA.” (Docket No. 73 (FAC) at ¶ 14). Her Arizona- and Oregon-law claims stem from the same theory. Id. at ¶ 52 (alleging that failure to properly pay wages due under the FLSA gives rise to Arizona-law treble damages); id. at ¶¶ 54-61 (Oregon penalties). The “administrative exemption” renders FLSA overtime requirements inapplicable to employees who perform office or non-manual work relating to the operations of the employer or its customers, and who exercise sufficient discretion and independent judgment. 29 C.F.R. § 541.200.2 This includes certain employees with sales-related responsibilities. E.g., Reich v. John Alden Life Ins. Co., 126 F.3d 1, 5, 13-14 (1st Cir. 1997) (exemption applied to certain employees who “generat[ed] approximately $1.5 million [to] $3 million in sales each year”). Indeed, the United States Department of Labor (“DOL”) and Avnet previously stipulated that the administrative exemption does, in fact, apply to Avnet’s SMRs. Docket No. 25 (Avnet’s Request for Judicial Notice (“RJN”) (filed 6/1/09)), Exh. A (Exh. 1 thereto, at 3). B. Plaintiff’s Allegations Regarding Her Job Duties and Those Of Other SMRs. The specific job duties at issue in this case were performed by Plaintiff while she was living and working in Oregon. FAC at ¶ 55 (“At all times relevant Plaintiff was employed by Defendant . . . within the State of Oregon”); ¶ 7 (Plaintiff “is a citizen and resident of Washington County, Oregon”). However, in describing her work, Plaintiff continues to rely on the same types of legal conclusions set forth in her Original Complaint. See, e.g., 2 The administrative exemption is just one of several potentially applicable exemptions, as discussed in Avnet’s Opposition to Plaintiff’s Motion for Conditional Certification. Docket No. 50 at 12. Case 2:09-cv-00603-MHM Document 83 Filed 07/23/09 Page 9 of 25 - 3 - 2219594.1/12444.041 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 Docket No. 1 (Original Complaint) at ¶¶ 25, 27, 28 (quoting FLSA regulations); Amended Complaint at ¶¶ 25, 26, 28, 29 (same). When Plaintiff finally gets around to alleging facts about her job, she provides nothing more than a “part[ial]” list of job duties. FAC at ¶ 27 (listing “part of [her] job responsibilities”). This “partial” list fails to address various other tasks performed by Plaintiff or by those she purports to represent. See, e.g., RJN, Exh. A (Exh. A to Exhibit 1 thereto (“exempt job description”), para. 2) (DOL Stipulation listing “negotiations,” “proposals,” and “handling of customer requirements”). It also fails to describe the tasks performed most frequently by any given employee. Yet, from this partial list of job duties, Plaintiff purports to draw legal conclusions about her “primary duty.” FAC at ¶ 26 (primary duty was “inside sales work” and “booking sales”). C. Plaintiff’s Class Allegations. Plaintiff also amended her class allegations. The class is no longer defined to include “other inside sales” employees; instead, however, she now seeks to certify a similarly vague and amorphous class of individuals who allegedly “perform[] substantially the same duties” as herself. FAC at ¶¶ 1; 13. In addition, although Plaintiff now has limited her Oregon state-law claims to individuals who actually worked in Oregon, FAC at ¶ 13, she continues to seek treble damages under Arizona state law on behalf of all SMRs throughout the country, regardless of whether they ever actually worked or set foot in Arizona. FAC at ¶ 13. III. PLAINTIFF’S BURDEN AT THE PLEADINGS STAGE In the wake of the U.S. Supreme Court’s decisions in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009), plaintiffs no longer can proceed to discovery merely by alleging facts that could possibly entitle them to relief. Rather, they must allege facts demonstrating “a claim to relief that is plausible on its face.” Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 570) (emphasis added); see also id. at 1950 (Rule 8(a) “does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions”). Under Iqbal, a plaintiff’s burden is two-fold. First, she must assert more than Case 2:09-cv-00603-MHM Document 83 Filed 07/23/09 Page 10 of 25 - 4 - 2219594.1/12444.041 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 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements.” 129 S.Ct. at 1949 (such allegations are not presumed to be true). Second, after stripping away these legal conclusions, the non-conclusory factual allegations in the complaint must state a claim for relief that is “plausible.” Id. at 1950. Facts that simply raise a “mere possibility of misconduct” are insufficient - they must actually “show,” in a plausible way, that the plaintiff is entitled to relief. Id. (“[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not ‘show[n]’- that the pleader is entitled to relief.” (quoting Fed. R. Civ. P. 8(a)(2)). Plaintiffs may not simply allege facts that are “consistent” with a right to relief if surrounding circumstances suggest an “obvious alternative explanation.” Iqbal, 129 S.Ct. at 1951 (quoting Twombly, 550 U.S. at 567). IV. ARGUMENT A. Plaintiff Fails To Plead Sufficient Facts To Make Her Overtime Claims Plausible. Plaintiff’s allegation that she was misclassified is the metaphorical “elephant in the room” and the key question undergirding this entire case. Yet, despite having amended her Complaint once already, Plaintiff still fails to plead facts about her job duties to make this claim plausible. As Avnet previously pointed out in its earlier Motion to Dismiss/Strike, almost all of her allegations continue to consist of legal conclusions copied straight from FLSA regulations. Plaintiff’s only other allegation - her “partial” list of job duties - does nothing more than raise the “possibility” of misclassification (if that), which is clearly insufficient under Iqbal. Iqbal, 129 S.Ct. at 1949 (Rule 8(a) “asks for more than a sheer possibility that a defendant has acted unlawfully.”). Indeed, because “exempt status depends upon an individualized determination of [Plaintiff’s] work,” Vinole v. Countrywide Home Loans, Inc., 2009 WL 1926444 *9 (9th Cir. July 7, 2009), Plaintiff’s allegation that class members were misclassified as exempt makes actual allegations of job duties all the more necessary. See, e.g., Perez v. Time Moving & Storage, Inc., 2009 U.S. Dist. LEXIS 17065 *2-3 (S.D.N.Y. Jan. 16, 2009) (“the need for specific factual allegations Case 2:09-cv-00603-MHM Document 83 Filed 07/23/09 Page 11 of 25 - 5 - 2219594.1/12444.041 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 about what the plaintiffs do every day [was] particularly important,” given the potential applicability of the FLSA’s Motor Carrier Exemption); see also Doe v. Wal-Mart Stores, Inc., 2009 U.S. App. LEXIS 15279 *11 (9th Cir. July 10, 2009) (allegations that defendant “contracted with suppliers regarding [various] contract terms” were insufficient, because they failed to indicate “an immediate level of day-to-day control over [defendant’s] supplier[s’] employees”) (internal quotations and citation omitted). 1. Plaintiff Fails To Plausibly Allege Misclassification. In alleging misclassification, Plaintiff continues to simply parrot back language from the pertinent regulations. In doing so, she continues to rely on the same type of bare legal conclusions that plagued her Original Complaint. To wit, she alleges: • “At no time material was Plaintiff’s or any other SMR employee’s primary duty the performance of office or non-manual work directly related to [Defendant’s or its customers’] management or general business operations,” FAC ¶ 25 (quoting 29 C.F.R. 541.200(a)(2) and 541.201(a)) (emphasis added); see also FAC ¶ 26 (drawing legal conclusions about the “primary duties” of SMRs);3 • “[A]t no time material did Plaintiff’s or any other SMR employee’s primary duty include the exercise of discretion or independent judgment with respect to matters of significance,” FAC ¶ 25 (quoting 29 C.F.R. 541.200(a)(3)) (emphasis added); • “Plaintiff and . . . current and former SMR employees . . . rarely, if ever, exercise true discretionary powers in connection with matters of significance,” FAC ¶ 28 (partially quoting 29 C.F.R. § 541.200(a)(3)) (emphasis added); • “Plaintiff and those current and former SMR employees similarly situated were not . . . relatively free from supervision in connection with matters of significance.” Id. ¶ 29 (quoting terms from 29 C.F.R. § 541.200, § 541.202(c)) (emphasis added)). These are precisely the sort of “[t]hreadbare recitals” that are plainly inadequate under Iqbal and Twombly. Iqbal, 129 S.Ct. at 1949. See also Doe, 2009 U.S. App. LEXIS 15279 *11 (deeming inadequate plaintiffs’ “conclusion” that was “not a factual allegation stated with any specificity”). Such allegations fall far short of providing a sufficient basis to subject any defendant to the tremendous cost of discovery in a nationwide class action. See id.; Xue Lian Lin v. Comprehensive Health Management, Inc., 2009 WL 976835 (S.D.N.Y. 2009) (conclusory allegation that individual defendants were “employers” under 3 The italicized language in these quotations was taken verbatim from FLSA regulations. Case 2:09-cv-00603-MHM Document 83 Filed 07/23/09 Page 12 of 25 - 6 - 2219594.1/12444.041 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 the FLSA was insufficient); LePage v. Blue Cross and Blue Shield of Minnesota, 2008 WL 2570815 (D. Minn. 2008) (conclusory allegation that defendant permitted employees “to work hours each week without minimum wage compensation” also insufficient). Nor is Plaintiff excused from pleading such facts simply because the exemption may qualify as an “affirmative defense.” “[W]hen an affirmative defense is disclosed in the complaint, it provides a proper basis for a Rule 12(b)(6) motion.” Muhammad v. Oliver, 547 F.3d 874, 878 (7th Cir. 2008).4 Apart from these legal conclusions, Plaintiff’s only other allegation about her work is a “partial” list of job duties, which includes certain “sales” functions, “quoting [of information],” “creating . . . purchase orders,” “communicating with customers,” and “attending [] meetings.” FAC at ¶ 27.5 These duties fail to satisfy Iqbal’s plausibility requirement, because they do not support Plaintiff’s claim that she or other employees were 4 Indeed, even where an affirmative defense does “not appear[] on the face of the complaint, [it] may be established upon motion to dismiss . . . when . . . a set of undisputed facts is revealed upon which the moving party is entitled to judgment as a matter of law.” Hyatt Chalet Motels, Inc. v. Carpenters Local 1065, 430 F.2d 1119, 1120 (9th Cir. 1970) (internal quotation marks and citation omitted). In Muhammad, Judge Posner held that dismissal was proper where plaintiff’s complaint failed to plead sufficient facts to support plaintiff’s contention that his claims were not barred by res judicata. 547 F.3d at 878. Similarly, where a complaint suggests a statute of limitations defense, the plaintiff’s “fail[ure] to sketch a factual predicate that would warrant the application of equitable estoppel,” so as to avoid the time bar, bars his claim. LaChappelle v. Berkshire Life Ins. Co., 142 F.3d 507, 509-10 (1st Cir. 1998). See also Richardson Construction, Inc. v. Clark County School Dist., 223 Fed. Appx. 731, 733 (9th Cir. 2007) (dismissal proper where plaintiff’s amended complaint failed to cure statute of limitations defect). 5 Plaintiff relies on this “partial” list of job duties to describe not only her own job duties but also those of individuals across the country who happen to share the “SMR” job title. FAC ¶ 27. Her refusal to plead anything more is telling. As recently demonstrated in Avnet’s Opposition to Plaintiff’s Motion for Conditional Certification, there are many significant differences in the job duties performed by different employees across the country who happen to share the “SMR” job title, and in how such SMRs spend their day. Docket Nos. 50-52. Thus, if Plaintiff ever were able to plead non-conclusory facts supporting her claims as to any of these other SMRs located anywhere else outside of Oregon, such facts would readily belie her claim that she is “similarly situated” to all other employees, thereby precluding her claim for certification. FAC ¶¶ 11, 13, 28-31; Docket No. 50 (Opp. to Conditional Cert.), at 9-14. Case 2:09-cv-00603-MHM Document 83 Filed 07/23/09 Page 13 of 25 - 7 - 2219594.1/12444.041 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 misclassified. Indeed, the listed duties are just as consistent with exempt as non-exempt status. Such mere “possib[ilities]” of entitlement to relief are insufficient. Iqbal, 129 S.Ct. at 1949. Moreover, there is no magic to Plaintiff’s repeated incantation of the term “sales.” See FAC ¶ 26 (reference to “inside sales,” and “sales of electronic component, computer and storage products and embedded subsystems”). As numerous courts have recognized, there is no reason why someone engaged in sales cannot qualify for the administrative exemption. See, e.g., Reich v. John Alden Life Ins. Co., 126 F.3d 1, 13-14 (1st Cir. 1997) (marketing representatives exempt); Wilshin v. Allstate Insurance Co., 212 F. Supp. 2d 1360, 1379-80 (M.D. Ga. 2002) (administrative exemption applied where plaintiff “interacted with clients in order to provide quotes and product information . . . [and] during the sales process he determined the products and coverages that he would recommend and emphasize to customers”); Hodgson v. Penn Packing Co., 335 F. Supp. 1015, 1020-21 n.3 (E.D. Pa. 1971) (“[T]here appears to be no reason why an inside salesman meeting all of the requirements for executive or administrative personnel could not be exempt.”); Gilstrap v. Synalloy Corp., 409 F. Supp. 621, 626 (M.D. La. 1976) (inside salesman exempt). 2. Plaintiff Fails To Adequately Allege That She Or Other SMRs Were “Similarly Situated.” Even assuming that Plaintiff has sufficiently pleaded that she and others were misclassified (which she clearly has not), she also comes nowhere close to plausibly alleging that employees are “similarly situated.” The burden of proving as much rests squarely on Plaintiff, 29 U.S.C. § 216(b), and requires her to show that class members “actually perform[] similar duties.” In re: Wells Fargo Home Mortgage, 2009 U.S. App. LEXIS 14864 *13 (9th Cir. July 7, 2009) (internal quotations omitted). To establish a plausible claim for relief, therefore, it follows that Plaintiff must at least allege that putative class members spent their time at work in substantially the same way that she did. Zhong v. August August Corp., 498 F. Supp. 2d 625, 628 (S.D.N.Y. 2007) (an FLSA plaintiff seeking to represent other employees must plead facts “indicat[ing] who those other Case 2:09-cv-00603-MHM Document 83 Filed 07/23/09 Page 14 of 25 - 8 - 2219594.1/12444.041 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 employees are, and alleg[ing] facts that would entitle them to relief”). Plaintiff utterly fails to meet this requirement: her “partial” list of job duties fails to suggest whether all SMRs spend their time the same way, or whether some spend most of their time “quoting prices,” as opposed to “attending meetings,” “creating . . . purchase orders,” or performing other tasks that Plaintiff does not even mention. FAC ¶ 27; Docket No. 51. Such specific job duties may affect an individual’s entitlement to relief under the FLSA. Vinole, 2009 WL 1926444 *8 (“[The FLSA exemption] analysis . . . require[s] an individualized inquiry into the manner in which each [employee] actually carried out his or her work.”). Moreover, Plaintiff’s amorphous reference to employees who “perform[] substantially the same duties” as SMRs, FAC ¶ 13, is unacceptably vague.6 As a matter of black-letter law, a class action plaintiff must allege the existence of “an identifiable and ascertainable class.” Mazur v. EBay, Inc., 2009 WL 1203937 at *4 (N.D. Cal. May 5, 2009). Simply alleging a class of “residents of this State active in the ‘peace movement,’” for example, DeBremaecker v. Scott, 433 F.2d 733, 734 (5th Cir. 1970), or employees “‘subject to the same type of conduct’ alleged . . . in [a] complaint,” Mateo v. M/S Kiso, 805 F. Supp. 761, 773 (N.D. Cal. 1991), is insufficient. See also Mazur, 2009 WL 1203937 at *4 (proposed class was unascertainable where plaintiff failed to “suggest[] a method by which to determine how to identify” class members). Similarly here, Plaintiff fails to define the inherently vague phrase “substantially the same duties” or suggest how to identify employees whose work she considers “substantially the same” as SMRs’. The Court therefore should strike this phrase from the class definition.7 6 It also belies her disingenuous “clarif[ication] that she supposedly is only seeking to “represen[t] a class of employees with the title of ‘SMR.’” Opp. to Mtn. to Dismiss at 2, n.1; Docket No. 24. 7 The Court also should strike Plaintiff’s proposed Oregon subclass, FAC ¶ 13, as Plaintiff fails to adequately allege that Rule 23’s numerosity requirement is satisfied, or that joinder would be impracticable, with respect to individuals from that small branch office. Case 2:09-cv-00603-MHM Document 83 Filed 07/23/09 Page 15 of 25 - 9 - 2219594.1/12444.041 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. Plaintiff Fails To Adequately Allege That Avnet Acted “Willfully.” Plaintiff further fails to plausibly allege that Avnet acted “willfully,” so as to extend the statute of limitations under the FLSA from two to three years. This is another issue on which Plaintiff indisputably bears the burden of proof. 29 U.S.C. § 255(a); McLaughlin v. Richland Shoe Co., 486 U.S. 128, 135 (1988) (placing the burden on “the [plaintiff] Secretary” to prove willfulness for statute-of-limitations purposes); De Luna-Guerrero v. North Carolina Grower’s Assn., Inc., 370 F. Supp. 2d 386, 388 (E.D.N.C. 2005) (same for private plaintiffs); State ex rel. Nilsen v. Lee, 251 Or. 284, 294 (1968) (same under Oregon law). In Iqbal, the Supreme Court specifically held that conclusory allegations of willfulness are insufficient. Iqbal, 129 S.Ct. at 1954. Yet that is exactly what Plaintiff has pleaded here, simply stating without elaboration that Avnet “intentionally, willfully, and repeatedly” violated the FLSA. FAC at ¶ 14. Although “conditions of a person’s mind” may be alleged “generally” under Fed. R. Civ. P. 9, plaintiffs cannot “evade the less rigid - though still operative - strictures of Rule 8,” which require more than “the bare elements of [a] cause of action.” Iqbal, 129 S.Ct. at 1954. Plaintiff’s failure to plead a single fact suggesting “willful” behavior is completely inadequate. This is especially true given that the DOL already has expressly agreed that various job duties performed by SMRs fall within the administrative exemption. RJN, Exh. A (Exh. 1 thereto, at 3).8 See, e.g., Service Employees Intern. Union, Local 102 v. County of San Diego, 60 F.3d 1346, 1355-56 (9th Cir. 1994) (willfulness not shown where defendants “consult[ed] experts and the DOL” about their obligations). Plaintiff’s allegations of willfulness should therefore be stricken.9 8 Courts can and should consider not only the contents of the complaint but also judicially noticeable “matters of public record outside the pleadings” in ruling on a motion to dismiss. Mir v. Little Co. of Mary Hosp., 844 F.2d 646, 649 (9th Cir. 1988). 9 Plaintiff’s assertion that Avnet “was or should have been aware” that its employees supposedly were not exempt, FAC ¶¶ 32-33, also does not suffice to allege “willfulness” because it is a legal conclusion and, in any event, only alleges negligence, rather than 29 U.S.C. § 255(a)’s minimum threshold showing of recklessness. McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133 (1988) (applying “knew or showed reckless disregard” standard). Case 2:09-cv-00603-MHM Document 83 Filed 07/23/09 Page 16 of 25 - 10 - 2219594.1/12444.041 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’s State-Law Claims Conflict With The FLSA’s “Opt-Out” Class And Remedial Scheme, And Therefore Are Preempted. The FLSA preempts Plaintiff’s claims for state-law penalties, which impermissibly seek to evade the FLSA’s “opt-in” class procedure by asserting FLSA-equivalent claims through an “opt-out” class under Fed. R. Civ. P. 23.10 Entertaining such claims would thwart Congress’s objectives in passing the FLSA in at least two ways. First, permitting assertion of FLSA-equivalent state-law claims through a Rule 23 “opt-out” class would “eviscerate the purpose of Section 216(b)’s opt-in requirement” by rendering it superfluous. Ellis v. Edward D. Jones & Co, L.P., 527 F. Supp. 2d 439, 452 (W.D. Pa. 2007) (internal quotations omitted); see also Evancho v. Sanofi-Aventis U.S., Inc., 2007 WL 4546100 (D.N.J. 2007) (same). Second, using state law to obtain additional remedies, such as A.R.S. § 23-355’s treble damages or ORS § 652.150’s waiting-time penalties, undermines and disrupts the FLSA’s carefully crafted remedial scheme. These clear and significant “obstacle[s] to the accomplishment and execution of the full purpose and objectives of Congress” demonstrate that Plaintiff’s state-law claims are preempted. Indust. Truck Ass’n, Inc. v. Henry, 125 F.3d 1305, 1309 (9th Cir. 1997) (internal citation omitted); U.S. Const., Art. VI (Supremacy Clause). 1. Plaintiff Impermissibly Seeks An Opt-Out Class. In the FLSA, Congress set forth specific, unique class procedures requiring that each plaintiff affirmatively “give[] his consent in writing” to join an FLSA class. 29 U.S.C. § 216(b). Congress intended this opt-in requirement to protect employers from a “vast flood of [FLSA] litigation,” Ellis, 527 F. Supp. 2d at 447, and to “protect[] employees . . . from having their FLSA rights adjudicated without their knowledge.” Woodard v. FedEx Freight East, Inc., 250 F.R.D. 178, 185 & 188 (M.D. Pa. 2008). To avoid frustrating these purposes, courts have refused to permit plaintiffs to “circumvent the [FLSA’s] opt-in 10 The FLSA requires plaintiffs to opt in to a class by affirmatively “giv[ing] . . . consent in writing” to become a plaintiff. 29 U.S.C. § 216(b). By contrast, Fed. R. Civ. P. 23 provides for “opt-out” classes, in which all class members are automatically included in the class unless they affirmatively opt out of it. Case 2:09-cv-00603-MHM Document 83 Filed 07/23/09 Page 17 of 25 - 11 - 2219594.1/12444.041 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 requirement and bring unnamed parties into federal court by calling upon state statutes similar to the FLSA.” Evancho, 2007 WL 4546100 *5 (internal quotations omitted). Indeed, there would be no point in Congress requiring plaintiffs to “opt in” to the FLSA if plaintiffs could evade that requirement by using Rule 23 and state law to smuggle in an unauthorized “opt-out” class. Here, Plaintiff seeks to do precisely that, by asserting a Rule 23 “opt-out” class under state laws that simply copy or piggyback off of the FLSA’s overtime provisions. Arizona, for instance, has no overtime requirement of its own, but simply provides for treble damages if employers fail to pay “wages.” Ariz. Rev. Stat. §§ 23-351, 23-355. Similarly, Plaintiff’s Oregon-law claim copies the FLSA’s substantive time-and-a-half and forty-hour requirements. ORS § 653.261; O.A.R. § 839-020-0030. Because permitting Plaintiff to assert these FLSA-equivalent claims through a Rule 23 class would nullify Congress’s intent in enacting the FLSA’s opt-in requirement, such claims are preempted and should be stricken by this Court. 2. Plaintiff Seeks Remedies That Would Disrupt the FLSA’s Comprehensive Remedial Scheme. Plaintiff also seeks to disrupt the FLSA’s carefully calibrated scheme of remedies by seeking additional state-law penalties not provided for by the FLSA. Congress designed the FLSA to include a detailed and specific panoply of remedies, including “criminal penalties for willful violations; [enforcement actions by] the Secretary of Labor . . .[,] liquidated damages, and injunctive relief; and [private actions by] workers.” Anderson v. Sara Lee Corp., 508 F.3d 181, 192 (4th Cir. 2007) (citing 29 U.S.C. §§ 215-17). This scheme strikes a careful balance between ensuring adequate wages for employees and protecting employers from catastrophic and potentially unwarranted liability. De Asencio v. Tyson Foods, Inc., 342 F.3d 301, 306 (3d Cir. 2003). Because the carefully crafted nature of the FLSA’s remedial scheme indicates a congressional intent that those remedies be exclusive, plaintiffs “cannot circumvent the [FLSA’s] exclusive remedy . . . by asserting equivalent state claims in addition to the FLSA Case 2:09-cv-00603-MHM Document 83 Filed 07/23/09 Page 18 of 25 - 12 - 2219594.1/12444.041 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 claim.” Roman v. Maietta Construction, Inc., 147 F.3d 71, 76 (1st Cir. 1998). In Roman, the First Circuit applied this rule to preclude the plaintiff from obtaining damages under Maine’s FLSA-equivalent overtime law. 147 F.3d 71, 76 (1st Cir. 1998).11 Similarly, in Anderson, the Fourth Circuit held that the FLSA preempted state-law claims that “depend[ed] on establishing that [defendant] violated the FLSA,” but would provide “more generous” remedies, including punitive damages. Anderson, 508 F.3d at 192-93. The Ninth Circuit has similarly explained that “[c]laims that are directly covered by the FLSA (such as overtime . . . disputes) must be brought under the FLSA.” Williamson v. General Dynamics Corp., 208 F.3d 1144, 1154 (9th Cir. 2000).12 See also Flores v. Albertson’s, Inc., 2003 WL 24216269, at *6 (C.D. Cal. Dec. 9, 2003) (“[t]he exclusive remedy for [conduct prohibited by the FLSA] is the FLSA.”); Nimmons v. RBC Ins. Holdings (USA) Inc., 2007 WL 4571179, at *1-2 (D.S.C. Dec. 27, 2007); Frey v. Spokane County Fire Dist. No. 8, 2006 WL 2597956, at *11 (E.D. Wash. Sept. 11, 2006); Moeck v. Gray Supply Corp., 2006 WL 42368, at *2 (D.N.J. Jan. 6, 2006). Here, Plaintiff seeks to refashion the FLSA’s comprehensive remedial scheme by piling on additional remedies that Congress did not intend it to include. Her Arizona-law claim would add otherwise-unavailable treble damages, while her Oregon-law claim would yield thirty days’ wages worth of waiting-time penalties. A.R.S. § 23-351; ORS § 652.150. Permitting Plaintiff to obtain these non-FLSA remedies, for FLSA-equivalent claims, would completely undermine Congress’s work. Such overreaching should not be permitted by this Court, because “[i]t would be difficult . . . to find any purpose in [Congress’s] careful process if alternative remedies, varying with variations of state law[,] were also to 11 Plaintiff misleadingly characterizes Roman as “suggest[ing] a different result may have occurred if the plaintiff had raised a claim under” Maine’s pay-period statute. Opp. to Mtn. to Dismiss at 12; Docket No. 75. Roman neither says nor implies any such thing; instead, it simply states that no such claim was raised. Roman, 147 F.3d at 76. 12 Although the FLSA did not preempt the Williamson plaintiff’s claims for “career fraud,” this was only because those claims did not address the same type of conduct as the FLSA did and thus were not “directly covered by” the FLSA’s provisions. 208 F.3d at 1154. Case 2:09-cv-00603-MHM Document 83 Filed 07/23/09 Page 19 of 25 - 13 - 2219594.1/12444.041 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 be available in any [FLSA] case in which the alternative seemed more advantageous to the plaintiff-employee.” Lerwill v. Inflight Motion Pictures, Inc., 343 F. Supp. 1027, 1029 (N.D. Cal. 1972).13 C. Plaintiff’s Extraterritorial Arizona-Law Claim Should Be Dismissed Or Stricken. This Court should reject Plaintiff’s unprecedented and dubious attempt at extending Arizona law beyond the borders of this State to seek treble damages on behalf of a nationwide class of employees, many of whom have never set foot (let alone worked) in Arizona. 1. Plaintiff Does Not Qualify As An “Employee” Under A.R.S. § 23-350. As an Oregon citizen who worked, lived, and still lives in Oregon, FAC ¶¶ 7, 55, Plaintiff fails to satisfy the Arizona Wage Act’s definition of an “employee” - i.e., a person who “performs services for an employer under a contract of employment either”: (1) made in this state” or (2) “to be performed wholly or partly within this state.” A.R.S. § 23-350. First, Plaintiff fails to adequately allege that the contract was “made” in Arizona. Indeed, the only facts she submits regarding her legal conclusion to that effect, FAC ¶ 48, suggest that Plaintiff accepted, signed, and mailed her employment contract from Oregon. See Docket No. 77 (Colson Decl., Exh. A).14 Under Arizona law, a contract is “made” where “the last act necessary for its formation is done.” Ryan v. Indust. Comm’n of Arizona, 127 Ariz. 607, 609 (Ariz. App. 1981); A.R.S. § 23-350. And, where a contract is 13 The FLSA’s “savings clause,” 29 U.S.C. § 218, certainly does not suggest otherwise, as it only authorizes state laws with a higher “minimum wage” or lower “maximum workweek” than the FLSA has. 29 U.S.C. § 218. Here, neither Plaintiff’s Arizona claim nor her Oregon claim provides a different “minimum wage” or “maximum workweek” than does the FLSA. 14 Nothing in Plaintiff’s Complaint suggests that Plaintiff did anything other than mail the letter back to Arizona, and there is no reason to believe otherwise. Docket No. 77 (Colson Decl., Exh. A). Indeed, by mailing Plaintiff the offer letter, Avnet invited her to send her acceptance back by mail. See id.; In re Marriage of Reich, 32 P.3d 904, 909 (Or. App. 2001) (offer sent by mail “invited [the offeree] to communicate her acceptance by mail.”). Case 2:09-cv-00603-MHM Document 83 Filed 07/23/09 Page 20 of 25 - 14 - 2219594.1/12444.041 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 negotiated by mail, “the place of the contract is the place where the reply is mailed,” 2 Williston on Contracts, § 6.62 (4th ed. 2009) (emphasis added). See also Restatement (Second) of Contracts, § 63 (comment a) (“[A]cceptance takes effect on dispatch.”).15 In Cohen v. First National Bank, 22 Ariz. 394, 400 (1921), for example, the Arizona Supreme Court held that the plaintiff’s “transaction was closed” “when the bank mailed [a] notice and deposit slip.” Similarly, in Filson v. Bell Telephone Labs, Inc., 186 A.2d 320, 325 (N.J. Co. 1962), the court held that plaintiff’s contract was “made” in New Jersey where the employer mailed the last letter from New Jersey to California. See also Cayuga Construction Co. v. Vanco Engineering Co., 423 F. Supp. 1182, 1184 (W.D. Pa. 1976) (letter sent from New York “makes New York the place of contract”); In re Marriage of Reich, 32 P.3d 904, 909 (Or. App. 2001). These cases make clear that, because the “last act” necessary to secure Plaintiff’s employment was Plaintiff mailing back an “offer letter” to Avnet from Oregon, Docket No. 77, Exh. A, her contract was “made in” Oregon rather than Arizona. 2. Plaintiff Did Not “Perform” Any Employment Contract In Arizona. Second, Plaintiff also cannot legitimately allege that she “performed [her contract] wholly or partly” in Arizona, A.R.S. § 23-350, because she worked only in Oregon. FAC ¶ 55 (“At all times relevant to this action, Plaintiff was employed by Defendant . . . within the State of Oregon”). Plaintiff’s vague assertion that she and other SMRs “performed [work] in Arizona,” FAC ¶¶ 48-49, is nothing more than a bare and unsupported legal conclusion. Moreover, it is flatly contradicted by Plaintiff’s own “offer letter” from Avnet (submitted to this Court by Plaintiff herself) which states that Plaintiff was employed “in Beaverton, OR.” Docket No. 77 (Colson Decl.) Exh. A, at 1 (emphasis added)). Similarly, Plaintiff’s assertion that other SMRs “performed work” in Arizona is belied by her statement that many of these SMRs worked not in Arizona, but in “Washington, California 15 The same rule applies to contracts sent by FedEx or other carriers. 2 WILLISTON ON CONTRACTS, § 6.37; Norkunas v. Cochran, 895 A.2d 1101, 1109 (Md. App. 2006) (quoting WILLISTON). Case 2:09-cv-00603-MHM Document 83 Filed 07/23/09 Page 21 of 25 - 15 - 2219594.1/12444.041 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 . . . Minnesota, Florida, New York, and New Jersey.” Docket No. 77 (Colson Decl., (5/29/09)), ¶ 5. Against the backdrop of her own contrary statements, Plaintiff’s conclusory allegations of work “performed” in Arizona are even more clearly insufficient. Iqbal, 129 S.Ct. at 1940. Plaintiff’s only allegation that she ever even set foot in Arizona is her contention that she spent five days there on one occasion within the first month of her employment to attend “training,” which she couples with a contention that she later placed phone calls and sent emails to co-workers in Arizona. Opp. to Mtn. to Dismiss, at 14; Docket No. 24. Notably, none of these allegations appears anywhere in Plaintiff’s Complaint - they are mentioned only in her (since-withdrawn) Opposition to Avnet’s Motion to Dismiss/Strike her Original Complaint. Nor does Plaintiff allege, anywhere, that any such “training,” emails, or phone calls were completed by any other SMRs besides herself. These allegations thus clearly cannot support Plaintiff’s or any other SMR’s claim of “employee” status under A.R.S. § 23-350. Moreover, the Arizona Legislature could not possibly have intended that merely visiting Arizona for a few days of “training” within the first month of employment could entitle an out-of-state employee to the full protections of Arizona’s wage law.16 As the Arizona Supreme Court has held, “[s]tatutory enactments are presumed to be confined to operation within the state in the absence of an express statement to the contrary.” Desert Wide Cabling & Installation, Inc. v. Wells Fargo & Co., 191 Ariz. 516, 517 (1998) (emphasis added). This presumption is reflected in the Wage Act’s purpose of protecting Arizona “citizens.” City of Glendale v. Coquat, 46 Ariz. 478, 483 (1935) (emphasis added). See also Collins v. Am. Buslines, Inc., 286 P.2d 214, 228-29 (Ariz. 1955), rev’d on other grounds, 350 U.S. 528 (1956) (analogous workers’ compensation statute intended to protect 16 Even assuming Plaintiff’s “training” made her an “employee” for those five days, any claim based on such status would plainly be time-barred under Arizona’s one-year statute of limitations, A.R.S. § 12-541, because Plaintiff admits her employment began in February 2006. Docket No. 20 (Colson Decl., ¶ 2); Redhair v. Kinerk, Beal, Schmidt, Dyer & Sethi, 218 Ariz. 293, 300 (2008) (applying A.R.S. § 12-541 to wage claim under A.R.S. § 23-355). Case 2:09-cv-00603-MHM Document 83 Filed 07/23/09 Page 22 of 25 - 16 - 2219594.1/12444.041 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 only Arizona residents). Merely visiting a State for work, even coupled with regular phone calls to the State, plainly does not constitute partial “performance” of an employment contract within that State. See, e.g., Panos v. Timco Engine Center, Inc., 2009 WL 1658416 (N.C. App. June 16, 2009) (traveling eight to nine times per year to North Carolina, and making daily phone calls into the State, did not trigger North Carolina’s wage law); Pelican State Phys. Therapy, LP v. Bratton, 2007 WL 2833303 (Tex. App. Sept. 27, 2007) (no personal jurisdiction over employee who merely attended two days of training in Texas and later traveled there for work). Extending Arizona’s wage law nationwide also would raise constitutional concerns by interfering with other States’ “fundamental police power to safeguard the welfare of [their] citizens.” South Ridge Baptist Church v. Industrial Com’n of Ohio, 911 F.2d 1203, 1208 (6th Cir. 1990). See also State Farm Mut. Auto Ins. Co. v. Campbell, 538 U.S. 408, 422 (2003) (“A basic principle of federalism is that each State may make its own reasoned judgment about what conduct is permitted or proscribed within its borders.”) For example, Arizona’s requirement of sixteen-day pay periods, A.R.S. § 23-351(A), conflicts with Oregon’s rule that employees may agree to pay periods of different length, ORS § 652.120. Similarly, Arizona’s pay-on-termination provision, A.R.S. § 23-353, requires payment within three days of termination, whereas Washington requires such payment “at the end of the established pay period.” RCWA § 49.48.010. Arizona’s provision permitting employers to withhold wages based on a “good faith dispute” as to the amount due, A.R.S. § 23-352, conflicts with Washington’s rule forbidding such withholding except where authorized by law, with the employee’s consent, or for medical reasons. RCWA § 49.48.010. Forcing employers to navigate this thicket of laws would unduly interfere with interstate commerce, violating the Commerce Clause’s “prohibit[ion on] [States] . . . regulating the working conditions of . . . non-resident[s] who perform[] work and earn[] wages outside of the state.” Mitchell v. Abercrombie & Fitch, 2005 WL 1159412, at *3 (S.D. Ohio, May 17, 2005); see also National Collegiate Athletic Ass’n v. Miller, 10 F.3d 633, 639-40 (9th Cir. 1993). Case 2:09-cv-00603-MHM Document 83 Filed 07/23/09 Page 23 of 25 - 17 - 2219594.1/12444.041 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 “If one [possible interpretation of a statute] would raise a multitude of constitutional problems, the other should prevail.” Clark v. Martinez, 543 U.S. 371, 380-81 (2005). To avoid these constitutional concerns and conflicts of laws, this Court should construe Section 23-350 as not extending to non-Arizonans who live and work in other States.17 D. Plaintiff Lacks Standing To Pursue Injunctive Relief. Plaintiff’s request for injunctive relief also should be stricken, because “the right to bring an action for injunctive relief under the [FLSA] rests exclusively with the United States Secretary of Labor,” and not with private plaintiffs. Powell v. Florida, 132 F.3d 677, 678 (11th Cir. 1998); 29 U.S.C. §§ 211, 216(b). Moreover Plaintiff, as a former employee, lacks standing to seek an injunction on behalf of current employees. City of Los Angeles v. Lyons, 461 U.S. 95, 104-05 (1983); Lanzarone v. Guardsmark Holdings, Inc., 2006 WL 4393465, at *3 (C.D. Cal. Sept. 7, 2006). V. CONCLUSION For the foregoing reasons, Avnet respectfully requests dismissal of Plaintiff’s conclusory and vaguely pleaded Complaint under Fed. R. Civ. P. 8, Twombly and Iqbal. Alternatively, and for the reasons discussed above, Avnet asks this Court to strike and/or dismiss Plaintiff’s unascertainable class definition, Plaintiff’s overreaching state-law claims, and Plaintiff’s impermissible request for injunctive relief under the FLSA.18 DATED: July 23, 2009 Respectfully submitted, GIBSON, DUNN & CRUTCHER LLP FENNEMORE CRAIG, P.C. By: /s/ Julian W. Poon Julian W. Poon Attorneys for Defendant Avnet, Inc. 17 Moreover, because the Arizona-law provisions invoked by Plaintiff also authorize criminal penalties, A.R.S. 23-351(F), imposing such liability on Avnet without prior warning that it could be punished under Arizona law would violate the Due Process Clause. See, e.g., Landgraf v. USI Film Prods., 511 U.S. 244, 281 (1994); Harris v. Mexican Specialty Foods, Inc., 564 F.3d 1301, 1304 (11th Cir. 2009) (“When a damages award is punitive in nature, it is subject to constitutional excessiveness review.”) 18 Avnet also requests attorneys’ fees under A.R.S. § 12-341.01. Case 2:09-cv-00603-MHM Document 83 Filed 07/23/09 Page 24 of 25 - 18 - 2219594.1/12444.041 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 CERTIFICATE OF SERVICE ý I hereby certify that on July 23, 2009, I electronically transmitted the attached document to the Clerk’s Office using the CM/ECF system for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Susan Martin Daniel Bonnett Jennifer Kroll Martin & Bonnett, PLLC 1850 N. Central Avenue, Suite 2010 Phoenix, AZ 85004 Joel Christiansen (Pro Hac Vice) Christiansen Law 520 SW Sixth Avenue, Suite 1250 Portland, Oregon 97209 /s/ Jill Wilson Case 2:09-cv-00603-MHM Document 83 Filed 07/23/09 Page 25 of 25