Lockette v. Ross Stores, Inc. et al

MOTION to Dismiss for Failure to State a Claim Upon Which Relief Can be Granted and for More Definite Statement

N.D. Cal.July 31, 2007

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 LITTLER MENDELSON Tieat Towers 1255 Ti«at Boulevard Suile 600 Walnu t Cieak CA 94597 925.932 2468 HENRY D. LEDERMAN, Bar No. 079498 LISA C. CHAGALA, Bar No. 217883 LITTLER MENDELSON A Professional Corporation Treat Towers 1255 Treat Boulevard Suite 600 Walnut Creek, CA 94597 Telephone: 925.932.2468 Facsimile: 925.946.9809 hlederman@littler.com lchagala@littler.com Attorneys for Defendants ROSS STORES, INC. AND ROSS DRESS FOR LESS, INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA TORESSA LOCKETTE; an individual; individually and on behalf of all other similarly situated current and former employees, Plaintiff, v. ROSS STORES, INC., a Delaware Corporation, ROSS DRESS FOR LESS, INC., a Virginia Corporation, and DOES 1- 100, Defendants. Case No. CV 03430 MMC DEFENDANTS' NOTICE OF MOTION, MOTION, AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED AND FOR MORE DEFINITE STATEMENT Date: September 7,2007 Time: 9:00 a.m. Courtroom: 7 Judge: Hon. Maxine M. Chesney Complaint filed: June 29, 2007 Trial Date: None set TO PLAINTIFF AND HER ATTORNEYS OF RECORD: NOTICE IS HEREBY GIVEN that on September 7, 2007 at 9:00 a.m., or as soon thereafter as counsel may be heard by the above-entitled Court, located at 450 Golden Gate Avenue, San Francisco, California, in Courtroom 7, 19th Floor, Ross Stores, Inc. and Ross Dress For Less, Inc. (collectively, "Defendants") will and hereby do move the Court for an order dismissing Plaintiffs second cause of action pursuant to Federal Rule of Civil Procedure 12(b)(6) and requiring DBFS' NOM, MTN, AND MPA ISO MTN TO DISMISS AND FOR MORE DEFINITE STATF.MKNT HMO TV 01410 MMO Case 3:07-cv-03430-MMC Document 5 Filed 07/31/2007 Page 1 of 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LITTLER MENDELSON A PROFESSIONAL CORPORATE Treat Towers 1255 Treat Boulevard Suite 600 Walnut Creek. CA 94597 925.932.2468 Plaintiff to provide a more definite statement of her claims pursuant to Federal Rule Of Civil Procedure 12(e). Defendants' motion to dismiss is based on the ground that Plaintiffs second cause of action for failure to provide rest periods purportedly brought under Fair Labor Standards Act, 29 U.S.C. §201 et seq. fails to state a claim upon which relief can be granted. The Fair Labor Standards Act does not provide a remedy for missed rest periods. Defendants' motion for more definite statement is made on the ground that Plaintiffs complaint is so vague and ambiguous that Defendants cannot reasonably required to frame a responsive pleading. The Complaint is unclear as to whether Plaintiff seeks to represent assistant managers, whether Plaintiff seeks to represent assistant general managers and managers, and whether Plaintiff intends the term "managers" to refer to store managers or some other group of managers. Defendants' motions are based on this Notice Of Motion, Motion, And Memorandum Of Points And Authorities hi Support Of Their Motion To Dismiss For Failure To State A Claim Upon Which Relief Can Be Granted And For More Definite Statement, the pleadings and papers on file in this action, and such other and further argument that the Court may permit in any hearing in this action. STATEMENT OF THE ISSUES 1. Whether this Court should dismiss Plaintiffs second cause of action pursuant to Federal Rule Of Civil Procedure 12(b)(6) on the ground that the Fair Labor Standards Act, 29 U.S.C. §201 et seq. does not provide a remedy for missed rest periods. 2. Whether this Court should require Plaintiff to amend her pleading pursuant to Federal Rule Of Civil Procedure 12(e) to clarify whether she seeks to represent assistant managers, whether she seeks to represent assistant managers and managers, and whether the term "manager" as used in the Complaint refers to store managers. DBFS' NOM, MTN, AND MPA ISO MTN TO DISMISS AND FOR MORE DEFINITE STATF.MF.NT HMD TV ftt^O MMP.̂ 2. Case 3:07-cv-03430-MMC Document 5 Filed 07/31/2007 Page 2 of 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LITTLER MENDELSON Suite 600 Walnut Creek, CA 94597 925 932 246fl MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION1 Defendants' motion to dismiss for failure to state a claim upon which relief can be granted should be granted. Plaintiffs second cause of action attempts to state a claim for missed rest periods in violation of the Fair Labor Standards Act, 29 U.S.C. §201 et seq. However, the Fair Labor Standards Act does not provide a remedy for missed rest periods. Accordingly, there is no basis in the law for Plaintiffs second cause of action. Defendants' motion for more definite statement should be granted because Plaintiffs complaint is vague and ambiguous as to the group she seeks to represent. The Complaint is internally inconsistent as to whether she seeks to represent assistant managers or assistant general managers and managers. It is also not clear whether she intends the term "manager" to refer to store managers or some other group of managers. For these reasons as explained in detail below, Defendants' motion to dismiss and motion for more definite statement should be granted.2 II. FACTS A. Plaintiffs Causes Of Action Plaintiff brought her action as a collective class action under the Fair Labor Standards Act, 29 U.S.C. §216(b) ("FLSA"). Plaintiffs first cause of action is for failure to pay overtime. Complaint 11(20-28. Plaintiffs second cause of action is for "failure to provide rest periods." Complaint 129-34. Specifically, Plaintiff alleges in her second cause of action that "Defendants were required 1 Defendants filed the instant Motion simultaneously with Defendants' Notice Of Motion, Motion, And Memorandum Of Points And Authorities In Support Of Their Motion To Change Venue Pursuant To 28 U.S.C. §1404(a). Defendants respectfully request that the Court hear Defendants' motion to change venue before the instant motion. In the event the Court grants Defendants' motion to change venue from this District to the Northern District of Alabama, Defendants request that the instant motion be decided in the Northern District of Alabama. As more fully developed in the accompanying Motion To Change Venue, Defendants explain that Plaintiff is party to an arbitration agreement. By filing the instant motion, Defendants do not waive their right to file a motion to compel arbitration. Shartfv. Wellness Int'l Network, Ltd., 376 F.3d 720, 726 (7th Cir. 2004) ("it is well-established that a party does not waive its right to arbitrate merely by filing a motion to dismiss"); Lake Communications, Inc. v. ICC Corp., 738 F.2d 1473, 1477 (9th Cir. 1984), overruled on other grounds, Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 632-35 (1985) (finding no waiver where the defendant filed a motion to dismiss and failed to seek arbitration until more than a year after the complaint was filed). DBFS' NOM, MTN, AND MPA ISO MTN TO DISMISS AND FOR MORE DEFINITE 3. ST A TF.MF.NT fNO TV 0141 f) MMO Case 3:07-cv-03430-MMC Document 5 Filed 07/31/2007 Page 3 of 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LITTLER MENDELSON A PROFESSIONAL CORPORATIO 1255 Tmt Boulevard Suite GOO Walnut Creek. CA 94597 925.932.2468 to provide Plaintiff with certain paid rest periods during the course of Plaintiffs work shift and/or work day, as per 29 C.F.R. 785.19, interpreting Title 29 of the Labor Code." Complaint 1f30. Plaintiff further alleges that "Defendants failed to provide Plaintiff and potential collective action members with proper rest periods and/or otherwise compensate them for missed rest periods in instances where employees were entitled to take them as alleged herein." Complaint Tf31; see also Complaint Tf32. B. Collective Action Allegations Plaintiff purportedly brings this action "on behalf of assistant managers and managers employed and formerly employed at Defendants' stores...." Complaint fl (emphasis added); see also Complaint H1J12,19 (referring to assistant managers and managers). However, Plaintiff alleges that she worked as an "assistant store manager...at a...retail store....for approximately four months," and does not allege that she ever held any other management job. Complaint ^fll (emphasis added). Plaintiff requests that notice of the action be sent to "past and present assistant managers employed by [Defendants]..." Complaint |̂16 (emphasis added). She also alleges that common questions among FLSA class members are "whether Defendants...refuse to pay assistant managers overtime compensation" and "whether Defendants' failure to pay assistant managers overtime...was willful...." Complaint f!8 (emphasis added); see also Complaint ^25,26, 32 (referring to assistant managers but not managers). III. ARGUMENT A. Plaintiffs Second Cause Of Action Must Be Dismissed, Because The FLSA Does Not Provide A Remedy For Missed Rest Periods. Plaintiffs second cause of action must be dismissed for failure to state a claim upon which relief can be granted. Fed. R. Civ. Proc. 12(b)(6). The FLSA does not mandate an employer "to provide...certain paid rest periods during the course of Plaintiff s work shift and/or work day...." Complaint ]f30. The FLSA does not require an employer "to provide...proper rest periods" or "compensate [employees] for missed rest periods...." Complaint |31; see also Complaint |32. The FLSA does not require an employer to provide compensation to employees for "working through their paid breaks." Complaint f31 (emphasis added). The FLSA does not provide a basis for "rest DBFS' NOM, MTN, AND MPA ISO MTN TO DISMISS AND FOR MORE DEFINITE STATFMF.NT HMD TV 01430 MMPA 4. Case 3:07-cv-03430-MMC Document 5 Filed 07/31/2007 Page 4 of 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LITTLER MENDELSON Treat Towers 1255 Treat Boulevard Suite 600 Watnul Creek CA 94597 925.932.2468 period penalties." Complaint ^[34. See e.g. Nelson v. Waste Mgmt. ofAlameda County, Inc., 2000 U.S. Dist. LEXIS 11286 (N.D. Cal. 2000), aff'd, 2002 U.S. App. LEXIS 3632 (9th Cir. 2002) ("The FLSA...does not require that an employer provide meal or rest periods"); Richard J. Simmons, Wage And Hour Manual For California Employers §4.3, p. 170 (2005) ("The F.L.S.A. does not require an employer to provide its employees with rest periods"). The FLSA (more specifically, the regulations interpreting the FLSA) merely requires that an employer treat rest periods as compensable work time: Rest periods of short duration, running from 5 minutes to about 20 minutes, are common in industry. They promote the efficiency of the employee and are customarily paid for as working time. They must be counted as hours worked. Compensable time of rest periods may not be offset against other working time such as compensable waiting time or on-call time. 29 C.F.R. §785.18; see e.g. Ballaris v. Wacker Siltronic Corp., 370 F.3d 901, 913 n.18 (9th Cir. 2004) (interpreting 29 C.F.R. §785.18 to mean that rest periods are counted as "hours worked" for purposes of FLSA overtime compensation calculations); Davis v. Charoen Pokphand (USA), Inc., 302 F.Supp.2d 1314, 1326 (M.D. Ala. 2004) (29 C.F.R. §785.18 defines compensable rest periods). This requirement as set forth in Section 785.18 was met, as Plaintiff admits that the breaks were "paid." Complaint pi. American Title Ins. Co. v. Lacelaw Corp., 861 F.2d 224, 226 (9th Cir. 1988) (a party is conclusively bound by factual allegations in his or her pleadings in the current litigation). Indeed, as a salaried employee, Plaintiff was compensated whether she was on a break or not. Accordingly, Plaintiffs second cause of action must be dismissed. B. Plaintiff Should Be Ordered To Provide A More Definite Statement. The complaint is so vague and ambiguous that Defendants cannot reasonably be required to frame a responsive pleading. Fed. R. Civ. Proc. 12(e). Plaintiff should be required to clarify whether she seeks to bring this action on behalf of "assistant managers" or whether she seek; to bring this action on behalf of "assistant managers and managers." If Plaintiff seeks to bring this action on behalf of "assistant managers and managers," Plaintiff should be required to clarify whether by the term "managers" she means store managers or some other group of managers Culver v. Bell & Loffland, Inc., 146 F.2d 29, 31 (9th Cir. 1944) (if the employer is in doubt as to DBFS' NOM, MTN, AND MPA ISO MTN TO DISMISS AND FOR MORE DEFINITE STATFMF.NT fNO P.V ClWW MMf^ 5. Case 3:07-cv-03430-MMC Document 5 Filed 07/31/2007 Page 5 of 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LITTLER MENDELSON A PROFESSIONAL CORPORATIO Treal Towets 1255 Treat Boulevatd Suite 600 Walnut Creek, CA 94597 925.932.2468 whom the plaintiff alleges are similarly situated, the employer may file a motion under Rule 12(e) for a more specific statement); Dager v. City of Phoenix, 2006 U.S. Dist. LEXIS 77925, *6-7 (D. Ariz. 2006) (granting employer's motion under Rule 12(e), where the complaint simply alleged that the defendant violated and is violating the overtime compensation requirements of the FLSA) Plaintiffs Complaint is internally inconsistent. In some paragraphs of the Complaint, Plaintiff indicates that she brings the action on behalf of assistant managers. Complaint If 11, 16, 18, 25, 26, 32. In other paragraphs of the complaint, Plaintiff indicates that she brings the action on behalf of assistant managers and managers. Complaint Iff 1; 12, 19. Additionally, Plaintiff does not clarify whether the term "managers" refers to "store managers." Plaintiff should be required to amend her pleading to clarify the group that she seeks to represent in this action. IV. CONCLUSION For the reasons described above, Defendants' motion to dismiss for failure to state a claim upon which relief can be granted and Defendants' motion for more definite statement should be granted. Dated: July 31,2007 b&As &AJt0tfUj2U HENRY D. LEDERMAN LISA C. CHAGALA LITTLER MENDELSON A Professional Corporation Attorneys for Defendants ROSS STORES, INC.; ROSS DRESS FOR LESS, INC. Firmwide:82828340.1 022233.2150 DBFS' NOM, MTN, AND MPA ISO MTN TO DISMISS AND FOR MORE DEFINITE STATFMF.NT fNO TV (m^f) MMO 6. Case 3:07-cv-03430-MMC Document 5 Filed 07/31/2007 Page 6 of 6