Cones v. Parexel International Corporation

MOTION to Dismiss for Failure to State a Claim

S.D. Cal.January 25, 2017

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 DEFENDANT’S MOTION TO DISMISS 16CV03084 36712107v.2 SEYFARTH SHAW LLP Diana Tabacopoulos (SBN 128238) dtabacopoulos@seyfarth.com 2029 Century Park East, Suite 3500 Los Angeles, California 90067-3021 Telephone: (310) 277-7200 Facsimile: (310) 201-5219 SEYFARTH SHAW LLP Michael W. Kopp (SBN 206385) mkopp@seyfarth.com 400 Capitol Mall, Suite 2350 Sacramento, California 95814-4428 Telephone: (916) 448-0159 Facsimile: (916) 558-4839 Attorneys for Defendant PAREXEL INTERNATIONAL CORPORATION UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA SCHOULEE CONES, an individual, on behalf of herself and all others similarly situated, Plaintiffs, v. PAREXEL INTERNATIONAL CORPORATION, a Massachusetts corporation licensed to do business in the State of California, Defendant. Case No. 3:16-cv-03084-L-BGS DEFENDANT’S MOTION TO DISMISS Date: February 27, 2017 Courtroom: 5B Judge: M. James Lorenz Complaint Filed: 12/22/16 Case 3:16-cv-03084-L-BGS Document 4 Filed 01/25/17 PageID.30 Page 1 of 21 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 DEFENDANT’S MOTION TO DISMISS 16CV03084 36712107v.2 TABLE OF CONTENTS Page NOTICE OF MOTION AND MOTION .................................................................................................... 1 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION ............................. 2 I. INTRODUCTION .......................................................................................................................... 2 II. PLAINTIFF’S ALLEGATIONS AND FACTUAL BACKGROUND.......................................... 3 III. LEGAL ARGUMENT.................................................................................................................... 4 A. Plaintiff’s Complaint Fails to Satisfy the FRCP 8(a) Pleading Standard as to Plaintiff’s First and Second Causes of Action for Failure to Pay Overtime Wages ........... 4 1. The Federal Pleading Standard. .............................................................................. 4 2. Plaintiff’s Claims for Overtime Are Legally Insufficient Under Twombly, Iqbal and Landers and Should be Dismissed. ......................................................... 5 3. Plaintiff’s Claims for Meal and Rest period Violations Are Legally Insufficient Under Twombly, Iqbal and Landers and Should be Dismissed. ......... 7 B. Plaintiff’s Fourth Cause of Action for Penalties for Violation of Labor Code 226 is Time Barred..................................................................................................................... 8 C. Plaintiff’s Fifth Cause of Action for Waiting Time Penalties Fails to State a Claim for Relief For Failure to Allege a Specific Injury, Violation or Basis for Standing......... 10 D. Plaintiff’s Allegations And Prayer For Relief For Penalties Under California Labor Code Section 2699 Should Be Dismissed, Because Plaintiff Has Not Pleaded Administrative Exhaustion and Such Relief is Time Barred. ............................. 11 1. Plaintiff Has Not Pleaded Facts Satisfying Administrative Prerequisites for Recovery of PAGA Penalties................................................................................ 11 2. Plaintiff’s Request for PAGA Penalties is Time Barred and Should be Dismissed.............................................................................................................. 12 E. Plaintiff’s Request for Punitive Damages Is Improper and Should be Dismissed. .......... 12 F. Plaintiff’s Sixth Claim under the UCL Seeking Recovery for Section 226 Wage Statement Violations, An Award of Attorney’s Fees, and Disgorgement of Profits Fails to State a Claim. ....................................................................................................... 13 1. Plaintiff May Not Seek Relief for Section 226 Violations via his UCL Claim..................................................................................................................... 13 2. Plaintiff’s Request for Attorneys’ Fees Pursuant to the UCL is Improper and Fails to State a Claim for Relief. .................................................................... 14 3. Plaintiff’s Request for Disgorgement of Profits is Improper and Fails to State a Claim for Relief......................................................................................... 14 Case 3:16-cv-03084-L-BGS Document 4 Filed 01/25/17 PageID.31 Page 2 of 21 ii DEFENDANT’ MOTION TO DISMISS 36712107v.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 G. As a Former Employee, Plaintiff Lacks Standing to Seek Injunctive Relief, Including Via Her UCL Claim.......................................................................................... 14 IV. CONCLUSION............................................................................................................................. 15 Case 3:16-cv-03084-L-BGS Document 4 Filed 01/25/17 PageID.32 Page 3 of 21 iii DEFENDANT’ MOTION TO DISMISS 36712107v.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 TABLE OF AUTHORITIES Page(s) Federal Cases In re Adobe Sys. Privacy Lit., 66 F. Supp. 3d 1197 (N.D. Cal. 2014) .................................................................................................10 Allee v. Medrano, 416 U.S. 802 (1974).............................................................................................................................11 Ashcroft v. Iqbal, 556 U.S. 662 (2009)...............................................................................................................................5 Baas v. Dollar Tree Stores, Inc., No. C 07-03108 JSW, 2007 WL 2462150 (N.D. Cal. Aug. 27, 2007) ...............................................13 Barnick v. Wyeth, 522 F. Supp. 2d 1257 (C.D. Cal. 2007) .................................................................................................9 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)...............................................................................................................................5 Blackwell v. SkyWest Airlines, Inc., 245 F.R.D. 453 (S.D. Cal. 2007) ...........................................................................................................9 Boon v. Canon Business Solutions, Inc., 592 Fed. App’x 631 (9th Cir. 2015) ......................................................................................................6 Byrd v. Masonite Corporation, 2016 WL 756523 (C.D. Cal. Feb. 25, 2016)..........................................................................................6 DeLeon v. Time Warner Cable, LLC, 2009 WL 9426145 (C.D. Cal. 2009)......................................................................................................7 Delodder v. Aerotek, Inc., No. CV 08-6044 CAS, 2009 WL 3770670 (C.D. Cal. Nov. 9, 2009) ................................................15 Elliot v. Spherion Pacific Work, LLC, 368 Fed. Appx. 761 (9th Cir. 2010).......................................................................................................9 Freeman v. Zillow, Inc., No. 14-01843, 2015 WL 5179511 (C.D. Cal. Mar. 19, 2015)...............................................................8 Garcia-Barajas v. Nestle Purina Petcare Co., 2009 WL 2151850 (E.D. Cal. July 16, 2009) ......................................................................................12 Guerrero v. Haliburton Energy Servs., Inc., No. 1:16-cv-1300-LJO-JLT, 2016 WL 6494296 (E.D. Cal. Nov. 2, 2016) ..........................................8 Haralson v. United Airlines, Inc., No. 16-CV-05226-JST, 2016 WL 7210983 (N.D. Cal. Dec. 12, 2016) ................................................7 Case 3:16-cv-03084-L-BGS Document 4 Filed 01/25/17 PageID.33 Page 4 of 21 iv DEFENDANT’ MOTION TO DISMISS 36712107v.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 Harding v. Time Warner, Inc., 09-cv-1212-WQH-WMc, 2009 WL 2575898 (S.D. Cal. Aug. 18, 2009) .............................................7 Landers v. Quality Commc’ns, 771 F.3d 638 (9th Cir. 2014) .............................................................................................................5, 6 Lewis v. Wendy’s International, Inc., 2009 U.S. Dist. LEXIS 132013 (C.D. Cal. Dec. 29, 2009) .................................................................15 Livid Holdings Ltd. v. Salomon Smith Barney, Inc., 416 F.3d 940 (9th Cir. 2005) .................................................................................................................9 Lopez v. Wendy’s Int’l, Inc., No. CV 11-00275 MMM JCX, 2011 WL 6967932 (C.D. Cal. Sept. 19, 2011) ...................................8 Milligan v. American Airlines, Inc., No. 08-55276, 2009 WL 1154213 (C.D. Cal. Apr. 30, 2009), aff’d Milligan v. American Airlines, Inc., 327 Fed. Appx. 694 (9th Cir. 2009) .............................................................15 Mitchell v. Sung, 816 F. Supp. 597 (N.D. Cal. 1993) ........................................................................................................9 Monjaraz v. Wonderful Citrus Packing LLC, NO. 1:15-cv-00263-TLN-JLT, 2016 WL 726908 (E.D. Cal. February 24, 2016) ..............................11 Perez v. Wells Fargo & Co., C-14-0989 PJH, 2014 WL 6997618 (N.D. Cal. Dec. 11, 2014)............................................................6 Raphael v. Tesoro Refining and Marketing Co. LLC, No. 2:15-cv-02862-ODW, 2015 WL 4127905 (C.D. Cal. July 8, 2015).........................................6, 8 Ritenour v. Carrington Mortgage Serv., Inc., 2017 WL 59069 (C.D. Cal. Jan. 5, 2017) ..............................................................................................6 Schreiber Distributing Co. v. Serv-Well Furniture Co., Inc., 806 F.2d 1393 (9th Cir. 1986) ...............................................................................................................9 Tan v. GrubHub, Inc., 171 F. Supp. 3d 998 (N.D. Cal. 2016) .................................................................................................12 Thomas v. Sprint Solutions, Inc., 2010 WL 1263189 (N.D. Cal. Mar. 30, 2010).....................................................................................11 Trahan v. U.S. Bank Nat’l Assoc., 2009 WL 4510140 (N.D. Cal. Nov. 30, 2009) ....................................................................................12 Varsam v. Laboratory Corp. of America, No. 14cv2719 BTM (JMA), 2015 WL 4624111 (S.D. Cal. August 3, 2015)........................................6 Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954 (9th Cir. 2010) .................................................................................................................9 Woo v. Home Loan Group, L.P., 2007 WL 6624925 (S.D. Cal. Jul. 27, 2007) .......................................................................................14 Case 3:16-cv-03084-L-BGS Document 4 Filed 01/25/17 PageID.34 Page 5 of 21 v DEFENDANT’ MOTION TO DISMISS 36712107v.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 State Cases Caliber Bodyworks, Inc. v. Superior Court, 134 Cal. App. 4th 365 (2005) ..............................................................................................................12 Cortez v. Purlator Air Filtration Prods., 23 Cal. 4th 163 (2000) .........................................................................................................................14 Korea Supply Co. v. Lockheed Martin Corp., 29 Cal.4th 1134 (2003) ........................................................................................................................13 Murphy v. Kenneth Cole Productions, Inc., 40 Cal. 4th 1094 (Cal. 2007)............................................................................................................9, 12 Pineda v. Bank of America, 50 Cal.4th 1389 (2010) ........................................................................................................................13 Weeks v. Baker & McKenzie, 63 Cal. App. 4th 1128 (1998) ..............................................................................................................14 Federal Statutes 29 U.S.C. § 207(a)(1)...................................................................................................................................5 State Statutes Cal. Code Civ. Proc. § 340(a) ................................................................................................................9, 12 Cal. Lab. Code § 201 .................................................................................................................................10 Cal. Lab. Code § 202 (a) ............................................................................................................................10 Cal. Lab. Code § 510 ...................................................................................................................................5 Cal. Lab. Code § 1198 .................................................................................................................................5 Rules Federal Rule of Civil Procedure 8(a)(2) ......................................................................................................4 Federal Rule of Civil Procedure 12(b)(6) ....................................................................................................4 Case 3:16-cv-03084-L-BGS Document 4 Filed 01/25/17 PageID.35 Page 6 of 21 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 DEFENDANT’S MOTION TO DISMISS 16CV03084 36712107v.2 NOTICE OF MOTION AND MOTION NOTICE IS HEREBY GIVEN that on February 27, 2017, in Courtroom 5B of this Court, located at 221 West Broadway, San Diego, California 92101, Defendant PAREXEL International Corporation, will and does hereby move the Court for an order pursuant to Rules 8(a)(2) and 12(b)(6) of the Federal Rules of Civil Procedure dismissing the following claims and requests for relief from Plaintiff’s Complaint: (1) Plaintiff’s first and second causes of action for overtime, for failure to set forth specific allegations that state a cause of action as required by Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Landers v. Quality Commc’ns, 771 F.3d 638 (9th Cir. 2014); (2) Plaintiff’s third cause of action for meal and rest period violations, for failure to set forth specific allegations that state a cause of action as required by Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Landers v. Quality Commc’ns, 771 F.3d 638 (9th Cir. 2014); (3) Plaintiff’s fourth cause of action for violation of Labor Code § 226, on the grounds that Plaintiff’s claim for penalties under 226 is subject to a one-year limitations period, and Plaintiff alleges her employment ended in July 2014, more than one year prior to the filing of the Complaint on December 22, 2016; (4) Plaintiff’s fifth cause of action for waiting time penalties pursuant to Cal. Labor Code §§ 201, 201.5, 202, 205.5 and 203, on the grounds that Plaintiff has not alleged with specificity her injury and standing to pursue the claim; (5) Plaintiff’s fifth and sixth causes of action for waiting time penalties under California Labor Code §§ 201, 201.5, 202, 205.5 and 203 and violation of Cal. Bus. & Prof. Code § 17200, on the grounds that these causes of action depend, at least in part, on the allegations of their first second, third and fourth causes of action and, hence, independently fail to state a claim upon which relief can be granted to the extent they so depend; Case 3:16-cv-03084-L-BGS Document 4 Filed 01/25/17 PageID.36 Page 7 of 21 2 DEFENDANT’S MOTION TO DISMISS 16CV03084 36712107v.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 (6) Plaintiff’s claims for wage statement violations and penalties within Plaintiff’s sixth cause of action for violation of Cal. Bus. & Prof. Code § 17200, on the grounds that penalties for wage statement violations are not recoverable under § 17200; (7) Plaintiff’s claim for “disgorgement” of allegedly “ill gotten gains” within Plaintiff’s sixth cause of action for violation of Cal. Bus. & Prof. Code § 17200, on the grounds that Plaintiff is limited to restitutionary relief, and disgorgement of alleged “ill gotten gains” is not recoverable under § 17200; (8) Plaintiff’s request for attorneys’ fees within Plaintiff’s sixth cause of action for violation of Cal. Bus. & Prof. Code § 17200, on the grounds that attorneys’ fees are not recoverable under § 17200; (9) Plaintiff’s request for injunctive relief within Plaintiff’s sixth cause of action for violation of Cal. Bus. & Prof. Code § 17200 and Prayer for Relief, on the grounds that Plaintiff is a former employee who has no standing to pursue such relief; (10) Plaintiff’s request for PAGA penalties, on the grounds that (1) she is time barred, as her employment ended in July 2014 (Compl. ¶ 4), and the Complaint was not filed until December 22, 2016, well after the one-year limitations period for PAGA claims, and (2) Plaintiff has not pleaded exhaustion of administrative remedies with the LWDC; and (11) Plaintiff’s request for punitive damages, on the grounds that punitive damages are not permitted for the wage and hour violations asserted in Plaintiff’s Complaint. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION I. INTRODUCTION Plaintiff’s Complaint purports to assert various wage and hour claims against her former employer, Defendant PAREXEL International Corporation1 arising from her alleged misclassification as an exempt Senior Clinical Research Associate. Her Complaint is replete with claims which (1) do not meet the pleading requirements of the Federal Rules of Civil Procedure as clarified in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Landers v. Quality Commc’ns, 771 F.3d 638 (9th Cir. 2014), (2) fail to state a claim based on the facts alleged, and (3) seek assorted forms of legally 1 Defendant PAREXEL International Corporation is named in error, as it was not at any time Plaintiff’s employer. Plaintiff was employed by PAREXEL International LLC. Defendant intends to address the error by way of a stipulation to dismiss PAREXEL International Corporation and to name PAREXEL International LLC as the party defendant. Case 3:16-cv-03084-L-BGS Document 4 Filed 01/25/17 PageID.37 Page 8 of 21 3 DEFENDANT’S MOTION TO DISMISS 16CV03084 36712107v.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 unavailable relief. Defendant accordingly moves to dismiss each of the deficient claims and requested remedies discussed below.2 II. PLAINTIFF’S ALLEGATIONS AND FACTUAL BACKGROUND Plaintiff alleges she worked for PAREXEL for a limited tenure of approximately three months, from “March 27, 2014 to July of 2014,” solely in the position of a “Senior Clinical Research Associate.” (Compl. ¶ 4.) Plaintiff describes PAREXEL’s business as follows: “For over 30 years, PAREXEL has proven to be a trusted partner for the complex development journey required of biopharmaceutical and medical device companies.” (Compl. ¶ 20, citing PAREXEL’s website.) Further, PAREXEL “is known as a ‘Clinical Research Organization’ or ‘CRO,’ and is hired by biopharmaceutical and medical device companies to assist them in administering clinical trials necessary for a [sic] newly developed, unapproved drug compounds and medical device to be approved by the Federal Drug Administration.” (Compl. ¶ 20.) Plaintiff alleges that PAREXEL’s “Clinical Research Associates I, Clinical Research Associates II, and Senior Clinical Research Associates conduct site monitoring responsibilities for clinical trials” according to guidelines and procedures. (Compl. ¶ 24.) These site monitoring responsibilities include “qualification visits (QV), site initiation visits (SIV) and monitoring visits (MV) at assigned clinical sites.” (Id.) These visits allegedly “consist of traveling to the offices of participating doctors to monitor and review the doctors’ documentation of disbursement of the unapproved drug to their patients and other patient information required to be documented as required by the clinical trial testing protocol and metrics of each study, as determined by the Sponsor.” (Id.) Plaintiff alleges that the duties performed by Clinical Research Associates I, Clinical Research Associates II, and Senior Clinical Research Associates do not qualify for any state or federal exemption from overtime requirements, and that “at all relevant times” these positions “were improperly classified as exempt employees of Parexel.” (Compl. ¶ 25.) Each of Plaintiff’s six causes of action alleging assorted wage and hour violations arise from this general allegation of misclassification, including Plaintiff’s: 2 Defendant brings this motion pursuant to Fed. R. Civ. P. 12(b)(6). See Whittlestone, Inc. v. Handicraft Co., 618 F.3d 970, 973-76 (9th Cir. 2010) (Rule 12(b)(6) motion to dismiss is the proper procedural device to challenge facially defective claims for punitive damages and other legally unavailable relief). Case 3:16-cv-03084-L-BGS Document 4 Filed 01/25/17 PageID.38 Page 9 of 21 4 DEFENDANT’S MOTION TO DISMISS 16CV03084 36712107v.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 (1) first cause of action for unpaid overtime under the Fair Labor Standards Act; (2) second cause of action for failure to pay overtime under California law; (3) third cause of action for failure to provide meal and rest periods; (4) fourth cause of action for failure to itemize wage statements; (5) fifth cause of action for violation of California Labor Code § 203; and (6) sixth cause of action for unfair competition in violation of California Business & Professions Code § 17200. Although the Senior Clinical Research Associate position is the only position Plaintiff (briefly) held with PAREXEL, Plaintiff seeks to represent an expansive statewide California class and nationwide collective as follows: (1) a nationwide FLSA collective consisting of “all persons employed by Defendant Parexel International Corporation in the position of a Clinical Research Associate I, Clinical Research Associate II, and/or Senior Clinical Research Associate within the United States at any time within three years prior to the filing” of the Complaint who file opt in consent forms, (Compl. ¶ 7); and (2) a “California subclass” of “all persons employed by Defendant Parexel International Corporation in the position of a Clinical Research Associate I, Clinical Research Associate II, and/or Senior Clinical Research Associate within the State of California at any time commencing four years prior to the filing” of the Complaint. (Compl. ¶ 7.) III. LEGAL ARGUMENT A. Plaintiff’s Complaint Fails to Satisfy the FRCP 8(a) Pleading Standard as to Plaintiff’s First and Second Causes of Action for Failure to Pay Overtime Wages 1. The Federal Pleading Standard. Plaintiff’s 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). Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that each claim in a pleading be supported by “a short and plain statement of the claim showing that the pleader is entitled to relief.” Id. To satisfy rule 8(a)(2) and survive a dismissal under Rule Case 3:16-cv-03084-L-BGS Document 4 Filed 01/25/17 PageID.39 Page 10 of 21 5 DEFENDANT’S MOTION TO DISMISS 16CV03084 36712107v.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 12(b)(6) of the Federal Rules of Civil Procedure, a complaint must contain sufficient factual matter “to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. A plaintiff cannot survive dismissal by making conclusory allegations that the elements of a claim have been satisfied. “[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions,” Iqbal, 556 U.S. at 678, and “a plaintiff’s obligations to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of a cause of action’s elements will not do.” Twombly, 550 U.S. at 545. Facts that are merely consistent with a defendant’s liability “stop[] short of the line between possibility and plausibility of ‘entitlement to relief.’” Twombly, 550 U.S. at 557; Iqbal, 556 U.S. at 678. 2. Plaintiff’s Claims for Overtime Are Legally Insufficient Under Twombly, Iqbal and Landers and Should be Dismissed. Plaintiff’s first and second causes of action for failure to pay overtime wages fail to satisfy the pleading standard articulated in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Landers v. Quality Commc’ns, 771 F.3d 638 (9th Cir. 2014), because both causes of action are bereft of any allegation identifying a given workweek in which Plaintiff (or any putative class member) actually worked overtime for which she was not compensated, or any estimate of the overtime allegedly owed. The California Labor Code requires employers pay overtime compensation to non-exempt employees at one-and-one-half times the regular hourly rate for hours worked in excess of eight hours in a day or forty hours in a week or for the first eight hours in a day on the seventh day of work. Cal. Lab. Code §§ 510 and 1198. The FLSA requires employers to compensate all hours worked over 40 in a week at one-and-one-half times the regular hourly rate. 29 U.S.C. § 207(a)(1). The bulk of Plaintiff’s allegations concerning unpaid overtime simply repeat this statutory and regulatory language. (Compl. ¶¶ 34-52.) Beyond that, Plaintiff states she and the putative class members “regularly worked in excess of eight hours in a day, and forty hours in a workweek,” and the performance of her duties “was not conducive to working less than eight hours in a day or 40 hours in a week.” (Compl. ¶¶ 27, 28, 30, 36.) Such allegations do not suffice to allege a single week in which Plaintiff actually worked and was entitled to overtime pay, nor do such allegations provide an estimate of the overtime wages she believes Case 3:16-cv-03084-L-BGS Document 4 Filed 01/25/17 PageID.40 Page 11 of 21 6 DEFENDANT’S MOTION TO DISMISS 16CV03084 36712107v.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 she is owed. See Landers v. Quality Commc’ns, 771 F.3d 638, 646 (9th Cir. 2014) (affirming dismissal of complaint that included comparable allegations, and noting that such allegations fail to provide “sufficient detail about the length and frequency of [plaintiff’s] unpaid work to support a reasonable inference that [plaintiff] worked more than forty hours in a given week.”) At the very least, plaintiffs “should be able to allege facts demonstrating that there was at least one workweek in which they worked in excess of forty hours and were not paid overtime wages.” Id. at 646.3 Numerous district court cases subsequent to Landers have dismissed both state and FLSA overtime claims for failure to provide sufficient detail regarding the overtime violation in the complaint, comparable to the deficiencies identified here. See, e.g., Ritenour v. Carrington Mortgage Serv., Inc., 2017 WL 59069 at *5 (C.D. Cal. Jan. 5, 2017) (granting motion to dismiss where Plaintiff failed to identify overtime violation with sufficient specificity, noting “[a]t the very least, plaintiffs ‘should be able to allege facts demonstrating that there was at least one workweek in which they worked in excess of forty hours and were not paid overtime wages.’”) (citing Landers, supra); Byrd v. Masonite Corporation, 2016 WL 756523 at *3 (C.D. Cal. Feb. 25, 2016) (applying Landers and dismissing overtime claims under California Labor Code where plaintiff failed to identify a single workweek in which he worked in excess of eight hours in a day or forty hours in a week such that he was entitled to overtime pay, his rate of pay, an estimate how much overtime he was entitled to but did not receive, or the basis for his knowledge and belief that other employees worked shifts in excess of eight hours and/or forty hours without adequate compensation); Perez v. Wells Fargo & Co., C-14-0989 PJH, 2014 WL 6997618, at *7 (N.D. Cal. Dec. 11, 2014) (applying Landers and stating: “allegations such as those asserted in the FAC-that certain plaintiffs ‘regularly’ or ‘regularly and consistently’ worked more than 40 hours per week-fall short of the Twombly/Iqbal standard and are thus insufficient to state a claim 3 Although Landers dealt specifically with the Fair Labor Standards Act, the same pleading requirements apply to claims for overtime under the California Labor Code. The Ninth Circuit has applied Landers to a complaint alleging violations of the California Labor Code, reasoning that Landers “articulated this Court's requirements for stating a wage claim under Twombly and Iqbal.” Boon v. Canon Business Solutions, Inc., 592 Fed. App'x 631, 632 (9th Cir. 2015). Additionally, district courts in this circuit have applied the Landers analysis to cases alleging violations of the overtime provisions of the California Labor Code. See Varsam v. Laboratory Corp. of America, No. 14cv2719 BTM (JMA), 2015 WL 4624111 at *3 (S.D. Cal. August 3, 2015); Raphael v. Tesoro Refining and Marketing Co. LLC, No. 2:15-cv-02862-ODW, 2015 WL 4127905 at *2 (C.D. Cal. July 8, 2015). Case 3:16-cv-03084-L-BGS Document 4 Filed 01/25/17 PageID.41 Page 12 of 21 7 DEFENDANT’S MOTION TO DISMISS 16CV03084 36712107v.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 for denial of overtime compensation.”); Haralson v. United Airlines, Inc., No. 16-CV-05226-JST, 2016 WL 7210983, at *10 (N.D. Cal. Dec. 12, 2016) (dismissing overtime claims: “As in Landers, Haralson's complaint fails to provide any factual information regarding whether he worked more than forty hours in any given workweek such that he was entitled to overtime wages.”); Harding v. Time Warner, Inc., 09- cv-1212-WQH-WMc, 2009 WL 2575898, at *3 (S.D. Cal. Aug. 18, 2009) (dismissing allegations under the FLSA and the California Labor Code that defendant failed to “pay and properly calculate overtime”). Plaintiff’s allegations that she “regularly” worked in excess of 40 hours in a week or 8 hours in a day, or that her position may not be “conducive” to working such a schedule facially fail to satisfy her pleading obligations under Rule 8. See, e.g., DeLeon v. Time Warner Cable, LLC, 2009 WL 9426145 at *3 (C.D. Cal. 2009) (Plaintiff asserted an overtime claim under California law, alleging that she and the class members consistently worked in excess of 8 hours in a day, in excess of 12 hours in a day, and/or in excess of 40 hours in a week; the Court granted the employer’s motion to dismiss finding that such allegations were insufficient under Twombly and Iqbal.) The failure to identify any specific workweek in which overtime was worked but not paid is particularly striking here, where Plaintiff’s tenure with PAREXEL was exceptionally brief, and limited to a narrow band of time of approximately three months. Accordingly, under Twombly, Iqbal, and Landers, Plaintiff’s pleading is legally insufficient, requiring dismissal of Plaintiff’s first and second causes of action for overtime. 3. Plaintiff’s Claims for Meal and Rest period Violations Are Legally Insufficient Under Twombly, Iqbal and Landers and Should be Dismissed. Plaintiff’s third cause of action for failure to pay overtime wages likewise fails to satisfy the pleading standard articulated in Twombly and Landers, because it fails to identify a given workweek in which Plaintiff (or any putative class member) actually worked a qualifying shift and failed to receive a meal or rest period. Instead, Plaintiff’s meal and rest period claims are alleged in boilerplate fashion, and diffusely claim violations “at all relevant times.” See, e.g., Compl. ¶ 57 (“[a]t all times relevant hereto, Plaintiff and the California Sub-Class have worked more than five hours in a workday,” and “[a]t all relevant times hereto, Parexel has failed to provide meal periods as required by Labor Code § 226.7 and 512.”) The rest period claim is pleaded in carbon copy fashion, using the same conclusory allegations asserted as to the meal period violations. See Compl. ¶ 61 (“At all times relevant hereto, Case 3:16-cv-03084-L-BGS Document 4 Filed 01/25/17 PageID.42 Page 13 of 21 8 DEFENDANT’S MOTION TO DISMISS 16CV03084 36712107v.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 and the California Sub-Class have worked more than four hours in a workday. At all times relevant hereto, Parexel failed to provide rest periods as required by Labor Code §§ 226.7 and 512.”) The “requirement in Landers that a plaintiff must plead a specific instance of alleged wage and hour violations also applies to claims about missed meal and rest periods.” Guerrero v. Haliburton Energy Servs., Inc., No. 1:16-cv-1300-LJO-JLT, 2016 WL 6494296 at *6 (E.D. Cal. Nov. 2, 2016) (granting motion to dismiss putative class meal and rest break claims for failure to identify a workweek in which a violation allegedly occurred). See also Raphael v. Tesoro Refining and Marketing Co., LLC, No. 2:15-cv-02862-ODW, 2015 WL 4127905 at *3 (C.D. Cal. July 8, 2015) (dismissing putative class meal and rest period claims for failure to satisfy Landers: Plaintiff “includes no relevant facts or dates during which these alleged violations occurred, instead he claims that ‘at all relevant times’ defendant failed to comply with a laundry list of regulations” including meal and rest period requirements); Freeman v. Zillow, Inc., No. 14-01843, 2015 WL 5179511, at *5 (C.D. Cal. Mar. 19, 2015) (dismissing meal and rest period claim: “[n]owhere does Plaintiff allege at least one meal or rest break where he worked through the break and was not paid for that time. Further, nowhere does Plaintiff allege a given instance where Defendant failed to provide him a meal or rest break in compliance with state law.”) Moreover, the requirement to plead the violation with sufficient specificity applies equally to putative class allegations. See Lopez v. Wendy's Int’l, Inc., No. CV 11-00275 MMM JCX, 2011 WL 6967932, at *2 (C.D. Cal. Sept. 19, 2011) (A plaintiff asserting claims on behalf of a class “does not lower the pleading requirements for the named plaintiff's claims, or in any way blunt the impact of the Supreme Court's holdings in Twombly and Iqbal.”). Accordingly, under Twombly, Iqbal, and Landers, Plaintiff’s pleading is legally insufficient, requiring dismissal of Plaintiff’s third causes of action for meal and rest period violations. B. Plaintiff’s Fourth Cause of Action for Penalties for Violation of Labor Code 226 is Time Barred. Plaintiff’s fourth cause of action for violation of Labor Code § 226 fails to state a claim for relief, because it was not timely filed. Plaintiff’s claim for penalties under § 226 is subject to a one-year limitations period, and Plaintiff alleges her employment ended in July 2014, over two years prior to the filing of the Complaint on December 22, 2016. (Compl. ¶ 4). Case 3:16-cv-03084-L-BGS Document 4 Filed 01/25/17 PageID.43 Page 14 of 21 9 DEFENDANT’S MOTION TO DISMISS 16CV03084 36712107v.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 California Code of Civil Procedure section 340(a) provides for a one-year limitations period for “[a]n action upon a statute for a penalty or forfeiture, if the action is given to an individual, or to an individual and the state, except if the statute imposing it prescribes a different limitation.” Cal. Code Civ. Proc. § 340(a). The California Supreme Court has confirmed that “[i]n section 226, the Legislature imposed a penalty on employers who fail to provide itemized earnings statements that comply with the Labor Code.” See Murphy v. Kenneth Cole Productions, Inc., 40 Cal. 4th 1094, 1108 (Cal. 2007). Such a claim is “undisputedly governed by a one-year statute of limitations.” Id. at 1118 fn. 16. Accordingly, the Ninth Circuit has held that if a plaintiff “is claiming penalties under section 226, [citation to Murphy], California’s one-year statute of limitations bars this claim [citing Cal. Code Civ. Pro. § 340].” Elliot v. Spherion Pacific Work, LLC, 368 Fed. Appx. 761, 764 (9th Cir. 2010); see also Blackwell v. SkyWest Airlines, Inc., 245 F.R.D. 453, 462 (S.D. Cal. 2007) (“Recovery under § 226(a) constitutes a penalty and is therefore governed by a one-year statute of limitations under California Code of Civil Procedure § 340(a).”); Barnick v. Wyeth, 522 F. Supp. 2d 1257, 1260 (C.D. Cal. 2007) (affirming one- year statute of limitations). As Plaintiff’s employment ended in July 2014, and Plaintiff did not file her Complaint until December 22, 2016, her claim is time barred. (Compl. ¶ 4.) Where the facts alleged in the complaint indicate the claim is barred by the statute of limitations, a motion to dismiss for failure to state a claim is proper. Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 969 (9th Cir. 2010); see also Mitchell v. Sung, 816 F. Supp. 597, 601-02 (N.D. Cal. 1993) (Courts may dismiss claims that are barred by the statute of limitations.) Additionally, leave to amend should not be granted if “it is clear that the complaint could not be saved by an amendment.” Livid Holdings Ltd. v. Salomon Smith Barney, Inc., 416 F.3d 940, 946 (9th Cir. 2005). A dismissal without leave to amend is proper if a complaint discloses that the action is barred by the statute of limitations. Schreiber Distributing Co. v. Serv-Well Furniture Co., Inc., 806 F.2d 1393, 1401 (9th Cir. 1986) (leave to amend should be denied if the court determines that any amendment to “the challenged pleading could not possibly cure the deficiency.”) Here, Plaintiff’s allegations confirm her defective fourth cause of action cannot be saved by amendment, and should therefore be dismissed with prejudice. Case 3:16-cv-03084-L-BGS Document 4 Filed 01/25/17 PageID.44 Page 15 of 21 10 DEFENDANT’S MOTION TO DISMISS 16CV03084 36712107v.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 C. Plaintiff’s Fifth Cause of Action for Waiting Time Penalties Fails to State a Claim for Relief For Failure to Allege a Specific Injury, Violation or Basis for Standing. Plaintiff’s claim for waiting time penalties pursuant to Labor Code § 203 fails to state a claim for relief, as it does not allege whether Plaintiff resigned or was terminated from her employment, and therefore fails to identify the specific predicate injury and violation giving rise to Plaintiff’s claim for § 203 penalties. As acknowledged by Plaintiff’s Complaint, Labor Code § 203 provides for the payment of penalties for separate and distinct violations of the California Labor Code, including §§ 201, [201.3], 201.5, [201.9], 202 and 205.5. (Compl. ¶ 71). For example, Section 201 applies to discharged employees, and requires employees to make immediate payment of earned wages: “the wages earned and unpaid at the time of discharge are due and payable immediately.” See Cal. Lab. Code § 201. In contrast, in order to invoke the statutory requirements of California Labor Code § 202, an employee must have “quit” his or her job, and different requirements apply to the employer. See Cal. Lab. Code § 202 (a) (“If an employee not having a written contract for a definite period quits his or her employment, his or her wages shall become due and payable not later than 72 hours thereafter, unless the employee has given 72 hours previous notice of his or her intention to quit, in which case the employee is entitled to his or her wages at the time of quitting.”) Plaintiff does not identify whether she resigned or was terminated, and instead broadly alleges: “Plaintiff and the California Sub-Class have left the Parexel’s [sic] employ, Parexel willfully failed to pay Plaintiff and the California Sub-Class a sum certain at the time of their termination or within seventy-two (72) hours of their resignation, and failed to pay those sums for thirty (30) days thereafter.” (Compl. ¶ 73.) Plaintiff’s fifth cause of action should, accordingly, be dismissed due to Plaintiff’s failure to (1) plead with sufficient specificity whether she was discharged or resigned, (2) identify which Labor Code provision PAREXEL violated with respect to her separation of employment, and (3) allege the specific manner of the violation. This lack of specificity requires dismissal of Plaintiff’s fifth cause of action, because Plaintiff inherently does not have standing to assert individual or class claims for both Section 201 and 202 violations. “In a class action, named plaintiffs representing a class ‘must allege and show that they personally have been injured, not that injury has been suffered by other, unidentified members of the class to which they belong and which they purport to represent.’” In re Adobe Sys. Privacy Lit., Case 3:16-cv-03084-L-BGS Document 4 Filed 01/25/17 PageID.45 Page 16 of 21 11 DEFENDANT’S MOTION TO DISMISS 16CV03084 36712107v.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 66 F. Supp. 3d 1197, 1211 (N.D. Cal. 2014) (citing Warth v. Seldin, 422 U.S. 490, 502 (1975). Plaintiff cannot seek to assert claims on behalf of a class that they themselves could not bring as individuals. Allee v. Medrano, 416 U.S. 802, 828-29 (1974) (“a named plaintiff cannot acquire standing to sue by bringing his action on behalf of others who suffered injury which would have afforded them standing had they been named plaintiffs[.]”). This concept, as applied to claims for Section 203 penalties, was explained at length in Monjaraz v. Wonderful Citrus Packing LLC, NO. 1:15-cv-00263-TLN-JLT, 2016 WL 726908 (E.D. Cal. February 24, 2016): Thus, in order for Plaintiffs to have standing to assert a cause of action for a violation of Labor Code Section 202, Plaintiffs must allege that they were personally injured by a violation of Labor Code Section 202. [L]abor Code Section 202 concerns employees who quit their employment. Therefore, a claim made under this statute may only be asserted by individuals who quit. Plaintiffs admit they were laid off. Consequently, Plaintiffs fail to allege and cannot allege that they were injured by not receiving wages after quitting. Id. at * 4. See also, Thomas v. Sprint Solutions, Inc., 2010 WL 1263189, at *4 (N.D. Cal. Mar. 30, 2010) (finding that dismissal for lack of standing may be brought under 12(b)(6) standard). Accordingly, Plaintiff’s fifth cause of action should be dismissed for failure to state a claim. D. Plaintiff’s Allegations And Prayer For Relief For Penalties Under California Labor Code Section 2699 Should Be Dismissed, Because Plaintiff Has Not Pleaded Administrative Exhaustion and Such Relief is Time Barred. Here, Plaintiff’s allegations and Prayer for Relief for PAGA civil penalties pursuant to California Labor Code sections 2699 are precluded as a matter of law as time barred and for failure to satisfy administrative pre-filing notice requirements. See Prayer for Relief ¶ 12 (requesting “Statutory penalties as provided in Labor Code sections 203 and 2699 and any other applicable authority”); Complaint ¶ 51 (broadly seeking unspecified “assessment of any statutory penalties against Parexel, in a sum as provided by the Labor Code and/or other statutes.”) (emphasis added). 1. Plaintiff Has Not Pleaded Facts Satisfying Administrative Prerequisites for Recovery of PAGA Penalties. Individuals who bring claims under PAGA must comply with the administrative procedures set forth in California Labor Code § 2699.3.3. Furthermore, after exhausting these administrative remedies, Case 3:16-cv-03084-L-BGS Document 4 Filed 01/25/17 PageID.46 Page 17 of 21 12 DEFENDANT’S MOTION TO DISMISS 16CV03084 36712107v.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 a party bringing a civil action must plead compliance with the pre-filing notice and exhaustion requirements. See Caliber Bodyworks, Inc. v. Superior Court, 134 Cal. App. 4th 365, 385 (2005). Here, Plaintiff has not alleged compliance with the pre-filing notice and administrative exhaustion requirements. (Complaint, passim.) Accordingly, her claim for PAGA penalties pursuant to California Labor Code § 2699 fails to state a claim for relief. See Tan v. GrubHub, Inc., 171 F. Supp. 3d 998, 1011 (N.D. Cal. 2016) (The plain language of the statute bars an employee from bringing a PAGA action when the employee has failed to satisfy and allege compliance with the administrative exhaustion requirement). 2. Plaintiff’s Request for PAGA Penalties is Time Barred and Should be Dismissed. As discussed above, civil penalties are subject to a one year limitations period, and Plaintiff did not file her complaint until over two years after her termination. Accordingly, Plaintiff is barred from seeking penalties pursuant to Labor Code § 2699. See Cal. Code Civ. Proc. § 340(a); Murphy, 40 Cal. 4th at 1107 (“[T]he Legislature certainly knows how to impose a penalty when it wants to, having established penalties in may Labor Code statutes by using the word “penalty.”) Because Plaintiff has no standing to seek Section 2699 PAGA penalties, the allegations and Prayer for such penalties (Prayer for Relief ¶ 12; Complaint ¶ 51) are precluded as a matter of law, and should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6). E. Plaintiff’s Request for Punitive Damages Is Improper and Should be Dismissed Plaintiff’s prayer for relief seeks punitive damages. (Prayer ¶ 13). Plaintiff’s request for punitive damages is properly dismissed for failure to state a claim, as punitive damages are not permitted for the wage and hour violations asserted, irrespective of Plaintiff’s allegations of culpable conduct. Garcia-Barajas v. Nestle Purina Petcare Co., 2009 WL 2151850, *4 (E.D. Cal. July 16, 2009) (citing and discussing authorities confirming that punitive damages “are not available for the wage and hour violations.”); see also Trahan v. U.S. Bank Nat’l Assoc., 2009 WL 4510140, *5 (N.D. Cal. Nov. 30, 2009) (holding that in the context of wage and hour claims based on statutory violations, punitive damages may not be maintained as a matter of law). Case 3:16-cv-03084-L-BGS Document 4 Filed 01/25/17 PageID.47 Page 18 of 21 13 DEFENDANT’S MOTION TO DISMISS 16CV03084 36712107v.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 F. Plaintiff’s Sixth Claim under the UCL Seeking Recovery for Section 226 Wage Statement Violations, An Award of Attorney’s Fees, and Disgorgement of Profits Fails to State a Claim. Plaintiff’s sixth cause of action for alleged violations of the Unfair Competition Law (“UCL”), Cal. Bus. & Prof. Code § 17200 seeks a collection of remedies and relief not provided by the UCL, including (1) unspecified relief for Labor Code penalties, (2) disgorgement of profits, and (3) attorneys’ fees. The only relief available under section 17200 is (1) an injunction (if the Plaintiff has standing to pursue the remedy), and (2) restitution. Korea Supply Co. v. Lockheed Martin Corp., 29 Cal.4th 1134, 1144 (2003) (“While the scope of conduct covered by the UCL is broad, its remedies are limited. A UCL action is equitable in nature; damages cannot be recovered . . . . We have stated that under the UCL, ‘[p]revailing plaintiffs are generally limited to injunctive relief and restitution.’”) (quoting Cel- Tech Comms. v. LA Cellular Tel. Co., 20 Cal.4th 163, 179 (1999)). Accordingly, PAREXEL requests the dismissal of the each of the following legally unavailable forms of relief Plaintiff seeks via his UCL claim, as discussed more fully below. 1. Plaintiff May Not Seek Relief for Section 226 Violations via his UCL Claim. Plaintiff’s sixth claim under the UCL purports to seek recovery for alleged violations of Labor Code § 226 wage statement requirements. (Compl. ¶¶ 77, 79, 82 and 86.) Labor Code penalties are generally not recoverable as a form of UCL restitution. See Pineda v. Bank of America, 50 Cal.4th 1389, 1401-1402 (2010) (Labor Code penalties not recoverable under the UCL); Baas v. Dollar Tree Stores, Inc., No. C 07-03108 JSW, 2007 WL 2462150 *5 (N.D. Cal. Aug. 27, 2007) (“Defendant moves to strike Plaintiff’s reference to California Labor Code §§ 203 and 226.6 from their Section 17200 claim on the grounds that Plaintiffs are limited to seeking injunctive relief and restitution under this claim. California Labor Code sections 203 and 226.6 provide for statutory penalties, not injunctive relief or restitution, and thus, are not recoverable pursuant to Section 17200. . . . the Court grants Defendant’s motion to strike the references to Sections 203 and 226.6 from Plaintiff’s Section 17200 claim.”) Accordingly, PAREXEL requests that Plaintiff’s claim for UCL recovery for wage statement violations be dismissed. Case 3:16-cv-03084-L-BGS Document 4 Filed 01/25/17 PageID.48 Page 19 of 21 14 DEFENDANT’S MOTION TO DISMISS 16CV03084 36712107v.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 2. Plaintiff’s Request for Attorneys’ Fees Pursuant to the UCL is Improper and Fails to State a Claim for Relief. Plaintiff seeks attorneys’ fees in connection with prosecuting her UCL claim. (Compl. ¶85). Attorneys’ fees are not provided by the UCL. Woo v. Home Loan Group, L.P., 2007 WL 6624925 at *7 (S.D. Cal. Jul. 27, 2007) (granting motion to strike request for fees on 17200 claim for wage and hour violations: “ While section 17200's scope is broad, its remedies are limited . . . . Prevailing parties under section 17200 may not receive damages or attorneys’ fees, but are generally limited to injunctive relief and restitution.” (citing Cal. Bus. & Prof. Code § 17203; Korea Supply Co., 29 Cal.4th at 1144).4 3. Plaintiff’s Request for Disgorgement of Profits is Improper and Fails to State a Claim for Relief. Plaintiff’s UCL claim seeks “an order of this Court requiring Parexel to disgorge all ill-gotten gains” and to require payment of “ill-gotten gains . . . still retained by Parexel.” (Compl. ¶ 85.) Such a request is improper, and not provided by the UCL. Woo, 2007 WL 6624925 at *7 (S.D. Cal. Jul. 27, 2007) (“Plaintiff's prayer for damages includes a request for disgorgement of revenues, earnings, profits, compensation and benefits obtained by Defendants pursuant to its UCL claim. [Defendants] argue that this prayer for relief should also be stricken. . . . A plaintiff bringing a UCL claim may not recover disgorgement beyond what it recoverable in restitution . . . . Accordingly, the Court grants [Defendant’s] motion to strike Plaintiff’s prayer for disgorgement.”) Cortez v. Purlator Air Filtration Prods., 23 Cal. 4th 163, 172 (2000) (in section 17200 case, trial court could not order disgorgement; “it may only order restitution to persons from whom money or property has been unfairly or unlawfully obtained.”). G. As a Former Employee, Plaintiff Lacks Standing to Seek Injunctive Relief, Including Via Her UCL Claim. Plaintiff’s Complaint and Prayer for Relief request various forms of injunctive relief, including (1) “an order of this Court for equitable and/or injunctive relief in the form of requiring Parexel to correct its illegal conduct, pay for all hours worked, provide overtime, required meal and rest periods or 4 Nor does plaintiff’s passing reference to Cal. Civ. Pro. Code Section 1021.5 permit the recovery of fees. Weeks v. Baker & McKenzie, 63 Cal. App. 4th 1128, 1170 (1998) (holding fees unavailable in statutory employment litigation: “Section 1021.5 was not designed as a method for rewarding litigants motivated by their own pecuniary interests who only coincidentally protect the public interest.”) Case 3:16-cv-03084-L-BGS Document 4 Filed 01/25/17 PageID.49 Page 20 of 21 15 DEFENDANT’S MOTION TO DISMISS 16CV03084 36712107v.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 premium wages in lieu thereof, to provide properly itemized wage statements, to keep accurate records of time worked, and to insure the payment of earned wages henceforth” (Compl. ¶ 86); (2) “an order requiring Parexel to classify its Clinical Research Associates I, Clinical Research Associates II, and Senior Clinical Research Associates non-exempt from overtime pay requirements, to keep accurate records of time worked, and to insure the payment of earned overtime wages henceforth.” (Prayer for Relief ¶ 4.) It is well settled that a former employee lacks standing to seek prospective injunctive relief on behalf of a putative class containing both former and current employees. See, e.g., Delodder v. Aerotek, Inc., No. CV 08-6044 CAS (AGRx), 2009 WL 3770670, at *3 (C.D. Cal. Nov. 9, 2009) (“plaintiffs lack standing to seek prospective relief under the UCL because plaintiffs do not dispute that they are no longer employees of defendant, and thus, they cannot demonstrate ‘a real or immediate threat of irreparable injury’ by defendant's employment practices”); Milligan v. American Airlines, Inc., No. 08- 55276, 2009 WL 1154213, at *1 (C.D. Cal. Apr. 30, 2009) (“Milligan is not an American employee. She therefore cannot show that she faces a ‘real or immediate threat of irreparable injury’ by American's employment practices. The fact that Milligan brought a class-action claim does not alter this analysis.”), aff’d Milligan v. American Airlines, Inc., 327 Fed. Appx. 694 (9th Cir. 2009); Lewis v. Wendy’s International, Inc., 2009 U.S. Dist. LEXIS 132013, *35-36 (C.D. Cal. Dec. 29, 2009) (former employee cannot show real or immediate threat of irreparable injury by former employer’s employment practices). IV. CONCLUSION For the reasons stated above, Defendant respectfully requests the Court grant its motion to dismiss the above claims and requests for relief from Plaintiff’s Complaint, with prejudice. DATED: January 25, 2017 Respectfully submitted, SEYFARTH SHAW LLP By: /s/ Michael W. Kopp Diana Tabacopoulos Michael W. Kopp Attorneys for Defendant PAREXEL INTERNATIONAL CORPORATION Case 3:16-cv-03084-L-BGS Document 4 Filed 01/25/17 PageID.50 Page 21 of 21 1 PROOF OF SERVICE RE: DEFENDANT’S MOTION TO DISMISS 3:16-CV-03084 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 SEYFARTH SHAW LLP Diana Tabacopoulos (SBN 128238) dtabacopoulos@seyfarth.com 2029 Century Park East, Suite 3500 Los Angeles, California 90067-3021 Telephone: (310) 277-7200 Facsimile: (310) 201-5219 SEYFARTH SHAW LLP Michael W. Kopp (SBN 206385) mkopp@seyfarth.com 400 Capitol Mall, Suite 2350 Sacramento, California 95814-4428 Telephone: (916) 448-0159 Facsimile: (916) 558-4839 Attorneys for Defendant PAREXEL INTERNATIONAL CORPORATION UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA SCHOULEE CONES, et al., Plaintiffs, v. PAREXEL INTERNATIONAL CORPORATION, et al., Defendant. Case No. 3:16-cv-03084-L-BGS PROOF OF SERVICE RE: DEFENDANT’S MOTION TO DISMISS Date: February 27, 2017 Courtroom: 5B Judge: M. James Lorenz Complaint Filed: 12/22/16 Case 3:16-cv-03084-L-BGS Document 4-1 Filed 01/25/17 PageID.51 Page 1 of 2 2 PROOF OF SERVICE RE: DEFENDANT’S MOTION TO DISMISS 3:16-CV-03084 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 certify that on January 25, 2017, I filed the foregoing Defendant’s Motion to Dismiss, which was served on counsel of record via the Court’s CM/ECF electronic filing system, as reflected on the Notice of Electronic File (NEF): Patrick N. Keegan James M. Treglio Keegan & Baker LLP 6156 Innovation Way Carlsbad, CA 92009 Walter Haines The United Employees Law Group 5500 Bolsa Avenue, Suite 201 Huntington Beach, CA 92649 Attorneys for Plaintiff T: (760) 929-9303 F: (760) 929-9260 pkeegan@keeganbaker.com T: (310) 234-5678 F: (562) 256-1006 walter@whaines.com DATED: January 25, 2017 SEYFARTH SHAW LLP /s/ Michael W. Kopp Michael W. Kopp Attorneys for Defendant PAREXEL INTERNATIONAL CORPORATION Case 3:16-cv-03084-L-BGS Document 4-1 Filed 01/25/17 PageID.52 Page 2 of 2