Smith et al v. Brinker International, Inc. et alMOTION to Dismiss ; Memorandum of Points and Authorities in Support ThereofN.D. Cal.January 27, 20101 2 aJ 4 5 6 7 8 9 l0 1l 12 13 t4 15 t6 t1 18 t9 20 2l 22 23 24 25 26 27 28 KAREN J. KUBrN(ÇAS_B_N 71560) MORRISON & F.OERSTER IIP 425 Market Street San Francisco. California 94105 -2482 Teleohone: (415\ 268-7000 Facsimile (+l5t 268-7522E-mail: KKubin@mofo.com SAMANTHA p. GOODMAN (CA SBN r9792r) MORRISON & FOERSTER rl-p 555 V/est Fifth Street, Suite 3500 Los Anseles. Califoníia 90013-1024 Teleoho"ne:'( 213\ 892-5200 Facsimile (2lllggz-sqsqE-mail: SGoôdman@mofo.com Attorneys for Defendants BRINKER INTERNATIONAL, INC. ANd BRINKER RESTAURANT CORPORATION UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION MARC SMITH; KEN WHELAN; individuallv and on behalf of members of the general public similarly situated, and as ãssrievéd emolovees oursuant tó the Private ,{tíorneys Geherál Act ("PAGA"), Plaintiffs, V. BRINKER INTERNATIONAL, INC., A Delaware comoration: BRINKER RESTAURANT CORPORATION. A Delaware corporation; and DOES I through 100, inclusivé, Defendants. Case No. C 10-00213 JCS DEFENDANTS'NOTICE OF MOTION AND MOTION TO DISMISS; MEMORANDUM OF POINTS AND AUTIIORITIES IN SUPPORT THEREOF IFRCP 12(bx6)l Date: March 5,2010 Time: 9:30 a.m. Magistrate Judge: Hon. Joseph C.9V ò1)ero Courtroom: A Defendants' Notice of Motion and Motion to Dismiss; Memorandum of Points and Authorities in Suoport Thereof la-1060400 Case3:10-cv-00213-VRW Document6 Filed01/27/10 Page1 of 10 I 2 aJ 4 5 6 7 8 9 t0 11 12 l3 l4 l5 t6 t7 l8 t9 20 2t 22 23 24 25 26 27 28 TO PLAINTIFFS MARC SMITH AND KEN \A/HELAN AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on Friday, March 5,2010, at 9:30 a.m. or as soon thereafter as the matter may be heard, in Department A of the above-entitled Court, located at 450 Golden Gate Ave., San Francisco, CA 94102, defendants Brinker International, Inc. and Brinker Restaurant Corporation ("Defendants") will and hereby do move pursuant to Federal Rule of Civil Procedure l2(bX6), for an order dismissing the First Amended Complaint filed January I 1,2010 in the above- captioned action on the ground that it does not comply with Federal Rule of Civil Procedure 8(a)(2) under Ashcroft v. Iqbal,129 S.Ct. 1937 (2009). In support of their motion, Defendants rely upon this Notice of Motion and Motion, on the attached Memorandum of Points and Authorities, and on all the pleadings and papers on file herein. Dated: January 27,2070 KAREN J. KUBIN SAMANTHA P. GOODMAN MORzuSON & FOERSTER IIp Attornevs for Defendants B RINKER INTERNATI ONAL, INC. and BNNKER RESTATTRANT CORPORATION Defendants'Notice of Motion and Motion to Dismiss; Memorandum of Points and Authorities in Support Thereof la-1060400 Case3:10-cv-00213-VRW Document6 Filed01/27/10 Page2 of 10 I 2 aJ 4 5 6 7 8 9 l0 ll T2 13 T4 15 t6 t1 18 t9 20 2I 22 23 24 25 26 27 28 I. INTRODUCTION The cookie-cutter First Amended Complaint filed by Plaintiffs Marc Smith and Ken Whelan could easily - in a matter of minutes - be transformed into a putative wage and hour class action complaint by any exempt managerial employee employed in the state of California, simply by cutting-and-pasting the names of the parties, the jurisdictional averments (II 1-6), and the dates of the named plaintiffls employment (flfl 12-13). Indeed, the First Amended Complaint reads as though it is a standard form pleading, cursorily filed after filling in a handful of blanks and wholly devoid of any specific factual content. Not a single paragraph informs Defendants or this Court about why Plaintiffs Smith and Whelan were supposedly misclassified as exempt managerial employees. Not a single paragraph informs Defendants or this Court about the work that Plaintiffs Smith or Whelan performed during their emploSrment. Indeed, the First Amended Complaint does absolutely nothing to tell Defendants or this Court anything about what Plaintiffs are actually avering, other than identifuing the causes of action and their elements. The Supreme Court, in its recent decision in Ashcroft v. Iqbal,l29 S.Ct. 1937 (2009), denounces careless pleading such as Plaintifß' First Amended Complaint, which merely "tenders 'naked assertionfs]' devoid of 'further factual enhancement."' Id. at 1949. "To suryive a motion to dismiss" under Federal Rule of Civil Procedure I2(b)(6),Iqbal instructs, "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face."' Id. Plaintiffs have entirely failed to meet this standard. Defendants' motion should be granted. II. RELEVANT BACKGROUND A. Case Initiation and Removal to Federal Court. Plaintiffs Marc Smith and Ken Whelan are former managers at Chili's Grill & Bar restaurants. See First Am. Compl., TI 12, 13. Plaintiffs filed their initial Complaint against Defendants Brinker International, Inc. and Brinker Defendants'Notice of Motion and Motion to Dismiss; Memorandum of Points and 2 Authorities in Support Therçof la-l 060400 Case3:10-cv-00213-VRW Document6 Filed01/27/10 Page3 of 10 1 2 aJ 4 5 6 7 8 9 10 11 12 l3 t4 15 t6 t7 18 19 20 21 22 23 24 25 26 21 28 Restaurant Corporation in Contra Costa Superior Court on December 8, 2009 and served Defendants on December 16,2009. See Compl.; Defs.' Not. of Removal, '11 8. The original Complaint purported to aver eight causes of action: (1) unpaid overtime (Cal. Lab. Code $$ 501, 1198); (2) meal period violations (Cal. Lab. Code çç 226.7,512(a)); (3) rest period violations (Cal. Lab. Code $ 226.7); (a) failure to timely pay wages (Cal. Lab. Code $ 204); (5) failure to pay wages at termination (Cal. Lab. Code $$ 201 -203);(6) non-compliant wage statements (Cal. Lab. Code g 226(a)); (7) failure to keep proper payroll records (Cal. Lab. Code $ 1 174(d)); and (8) statutory unfair competition (Cal. Bus. & Prof. Code $ 17200, et seq.). Plaintiffs purported to bring their lawsuit individually, on behalf of a proposed class of supposedly similarly situated individuals and as "aggrieved employees" pursuant to the Labor Code Private Attorneys General Act of 2004 (PAGA), Cal. Lab. Code $ 2698, et seq. All of Plaintiffs' causes of action were premised on a single underlying theory - that they and other Chili's managers are misclassified as exempt from state overtime and related laws. Ptaintiffs filed a First Amended Complaint on or about January 11,2010 and purported to serve Defendants by mail the same day. The First Amended Complaint makes only one minor modification to the original Complaint, amending paragraph 45 to state that Plaintiffs have not received a response to the written notice they claim to have sent to the California Labor and Workforce Development Agency on December 4,2009, and that therefore, their PAGA claims are now ripe. See First Am. Compl., I 45. On January 15,2010, Defendants removed the action to this court on the basis of diversity jurisdiction. This motion to dismiss follows. Defendants' Notice of Motion and Motion to Dismiss; Memorandum of Points and 3 Authorities in Support Thereof la-1060400 Case3:10-cv-00213-VRW Document6 Filed01/27/10 Page4 of 10 I 2 aJ 4 5 6 7 I 9 10 11 l2 13 t4 15 T6 T7 18 T9 20 2I 22 23 24 25 26 27 28 B. The First Amended Complaint Is Wholly Devoid of Factual Averments. The First Amended Complaint is glaring for its utter failure to make any specific factual averments. Indeed, the only arguably "factual" averments in the First Amended Complaint are conclusory statements that merely "parrot" the elements of Plaintifß' causes of action. For example, in support of their First Cause of Action, Plaintiffs merely state in conclusory fashion - without offering any other foundational facts - that "fd]uring the relevant period, Plaintiffs and the other class members regularly andlor consistently worked in excess of ': "eight (8) hours in a day" (First Am. Compl., 1[ 53); "twelve (12) hours in a day" (id.,]l54); and "forty (40) hours in a week" (id.,\Í 55). The entire First Amended Complaint is similarly populated with pure legal conclusions, unadorned by actual facts to give those conclusions any substance . See, e.g., id., Tll 18-21,23 (General Allegations); TT 66-70 (Second Cause of Action); flfl 77-80 (Third Cause of Action); I86 (Fourth Cause of Action); I90 (Fifth Cause of Action);n97 (Sixth Cause of Action); fl 10a (Seventh Cause of Action). Noticeably absent from the First Amended Complaint are any factual averments supporting Plaintiffs' theory that they were improperly classified as exempt managerial employees, or for that matter, any factual allegations at all regarding their employment - or the work they performed - as Chili's managers. ilI. ARGUMENT A. The Relevant Standard: Federal Rule of Civil Procedure 8(aX2) and.Ashcroft v. IqbøL. Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." In Ashcroft v. Iqbal,129 S.Ct. 1937 (2009), the United States Supreme Court recently clarified what this standard means, explaining that the "flexible Defendants' Notice of Motion and Motion to Dismiss; Memorandum of Points and 4 Authorities in Support Thereof la-1060400 Case3:10-cv-00213-VRW Document6 Filed01/27/10 Page5 of 10 1 2 aJ 4 5 6 1 8 9 l0 11 12 13 t4 15 I6 t7 18 19 20 2t 22 23 24 25 26 27 28 plausibility standard" set forth in Bell Atlqntic Corp. v. Twombly,550 U.S. 544 (2001), an antitrust case, applies equally with respect to "all civil actions." Iqbal, supra,l29 S.Ct. at 1953. Under lqbal, to satisf,i Rule 8(aX2) and thus survive a motion to dismiss under Rule 12(bX6), a complaint must aver actual facts - not mere legal conclusions masquerading as facts - demonstrating a plausible claim for relief. See id. at 1949-50. "[T]he pleading standard Rule 8 announces does not require 'detailed factual allegations,' but it demands more than an unadorned, the- defendant-unlawfu lly-harmed-me accusation." Id. at 19 49 . Iqbal, applyrng Twombly, announces a two-pronged approach. First, a court must analyze the averments of the complaint to "identi$r[] pleadings that, because they are no more than conclusions, are not entitled to an assumption of truth." Id. at 1950. A complaint "that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do. Nor does a complaint suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement."' See id. al 1949, 1950 ("Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice."); and see Moss v. Uníted States Secret 9erv.,572F.3d962,969 (9thCir.2009) ("'[B]are assertions . . . amounting to nothing more than a "formulaic recitation of the elementst'of a. . . claim' . . . do nothing more than state a legal conclusion - even if that conclusion is cast in the form of a factual allegation."). Second, if the plaintiff has alleged sufficient facts to bear out the elements of the claim, the court must then consider whether the adequately pleaded facts state a "plausible," rather than a merely "possible," claim. See lqbal,729 S.Ct. at 1949, 1950 ("The ptausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully"). Where a complaint pleads facts that are "merely consistent with" a defendant's liability, it "stops short of the line between possibility and plausibility of 'entitlement to relief."' (Id. at 1949.) Defendants' Notice of Motion and Motion to Dismiss; Memorandum of Points and Authorities in Support Thereof la-1060400 Case3:10-cv-00213-VRW Document6 Filed01/27/10 Page6 of 10 I 2 aJ 4 5 6 l 8 9 l0 ll I2 13 l4 15 l6 I7 18 I9 20 2I 22 23 24 25 26 27 28 B. The Averments in the First Amended Complaint - Which Merely Parrot the Elements of Plaintiffs' Causes of Action - Fail to Set - Forth Factual Content Sufficient to State a Claim upon \Mhich Relief Can Be Granted. Here, Plaintiffs have failed to satis$r even the first prong of the lqbal analysis. The bald, conclusory averments in the First Amended Complaint simply have "not 'nudged [their] claims"' for wage and hour violations "'across the line from conceivable to plausible. "' Iqbal, supre, 129 S.Ct. at 1950-5 1 . Iqbøl has been applied to dismiss deficient wage and hour class action complaints in the very circumstances present here. DeLeon v. Tíme Warner, Inc., 2009 U.S. Dist. LEXIS 14345 (C.D. Cal. Jul. 17,2009, No. CV 09-2438 AG (RNBx)), is precisely on point. DeLeon involved a putative class action alleging claims for unpaid overtime, meal and rest period violations, violations of Labor Code sections 201,202 and204, failure to pay vacation wages and unfair competition. In DeLeon, the district court held on defendant Time Warner's motion to dismiss that the averments in the First Amended Complaint ("FAC") "amountfe]d to the 'threadbare recitals of a cause of action's elements, supported by mere conclusory statements' that the lqbal Court warned against." Id. at*6. The district court specifically found that the following allegations - strikingly similar to the allegations in the First Amended Complaint here - were too conclusory to satisSr The lqbal pleading standard: P 33 - "Durins the relevant time þeriod. Plaintiff and class members cõnsistentlv worked^in excêss of eight (8) hours in a day, in excess of twelve (12) hours in a day, àríd/or in excess'of forty (40) hours in à wêek." P 46 - "Durinq the relevant time period, Defendants wi ll fu lly"requi red Pl ai ntiff dnd clas s members to work durins meal oeriods and failed to compensate Plaintiff and c'lass mémbers for work performeid during meal periods." P 55 - "Durins the relevant time period, D efendants wi 1l fu llv"required P I ainti ff a'nd cl as s memb ers to work durins restberiôds and failed to compensate Plaintiff and c'lass members for work perfornied during Defendants' Notice of Motion and Motion to Dismiss; Memorandum of Points and Authorities in Support Thereof la-1060400 Case3:10-cv-00213-VRW Document6 Filed01/27/10 Page7 of 10 1 2 J 4 5 6 7 I 9 10 1l t2 13 t4 15 t6 I7 18 I9 20 2T 22 23 24 25 26 27 28 rest periods." Id. a|p.*6-*l; and see Hørdíng v. Tíme Warner, lnc.,2009 U.S. Dist. LEXIS 72851, *8-*9 (S.D. Cal. Aug. 18, 2009, No. 09cvl2l2-WQH-WMc) (granting defendant's motion to dismiss and holding that the following averments are "conclusory allegations" that "will be 'assigned no weight"'under the lqbal pleading standard - allegations that defendant failed to "pay and properly calculate overtime"; "keep accurate records of all hours worked by its employees"; "provide all wages in a compliant manner"; "provide unintemrpted Meal Periods"; "provide accurate Itemized V/age Statements"; and "comply with California Labor Code $ 203."). The DeLeon court noted that "the FAC should allege more specific facts about Plaintiff himself, if not about the entire class," and criticized that "[i]nstead, the FAC regularly recites the statutory language setting forth the elements of the claim, and then slavishly repeats the stafutory language as the purported factual allegations." DeLeon, supra,2009 U.S. Dist. LEXIS 74345 at*7. The court explained: For examnle. Plaintiff s second claim is for unpaid meal break preriiums in violation of California Laboi Code çç 226.7 and 512(a). In this claim, Plaintiff alleges that "Öälifornia Labor Códe section 226:l provides thãt no emolover shall require an emplovee to work during any mê:alberiod . . . .1" and that Defendants "requiref, Pláintiff and class mémbers to work durine meal periods þóiåJSÍltt,*S"LåtËìilf ül*Tlï*iflåP:io¿ln'*¿i. Labor^Code 6126.7. In this claim. Plaintiff alleses that "California tabor Code section 2/6.7 provides that no employer shall require an employee towork.duqing ?ny-- rest pe"riod . . . .," änd that Defendants "required Plaintiff and ðlass members to work durine rest periods . . . ." l-Citine FAC.I In these and PlainÌiff s dther claims. ll1tfft simply parrots the statutory language. [Ciiing If Plaintiff wishes to survive a motion to dismiss, Plaintiff must plead sufficient "factual content" to allow the Court to mäke a reasonable inference that Defendants are liable for the claims alleged by Plaintiff. [Citing Defendants'Notice of Motion and Motion to Dismiss; Memorandum of Points and 7 Authorities in Support Thereof la-1060400 Case3:10-cv-00213-VRW Document6 Filed01/27/10 Page8 of 10 I 2 aJ 4 5 6 7 I 9 10 11 t2 13 T4 15 16 t7 18 T9 20 2t 22 23 24 25 26 27 28 I_qbal.l In the FAC, Plaintiff has not pled sufficient factual content. Id. atpp. *7-*8. Plaintiffs' lead counsel in the present case knew fully well what lqbal requires because they also represented the plaintiff in DeLeon. See Defendants' Request for Judicial Notice filed concurrently herewith, Ex. C. Undaunted, they filed the same copycat complaint in this case, without any apparent regard for the fact that DeLeon's reasoning applies equally here. See íd., Exs. A, B. In its entirety, the First Amended Complaint "simply parrots the statutory language" without providing any meaningful supporting factual allegations. See íd. at*8; and see Field v. Am. Mortgage Express, Corp.,2009 U.S. Dist. LEXIS 100063 (N.D. Cal. Oct. 27,2009, No. C 09-01430 MHP) (granting motion to dismiss Fair Labor Standards Act (FLSA) wage claims in part because the plaintiffls "complaint does not allege facts sufficient to establish that he was a 'non-exempt' employee such that he was entitled to the FLSA's minimum wage and overtime protections"). Indeed, other than vague (and inaccurate) allegations about the Plaintiffs' approximate dates of employment as Chili's "Assistant Managers," the First Amended Complaint contains no specific facts about the Plaintiffs at all. Significantly, Plaintiffs have not advanced any facts whatsoever to support that they - let alone the putative class they purport to represent - were improperly classified as exempt managerial employees. The First Amended Complaint violates lqbal and should be dismissed. Defendants' Notice of Motion and Motion to Dismiss; Memorandum of Points and Authorities in Support Thereof la-1060400 Case3:10-cv-00213-VRW Document6 Filed01/27/10 Page9 of 10 1 2 -J 4 5 6 7 I 9 10 1l T2 l3 t4 l5 16 T7 l8 t9 20 2l 22 23 24 25 26 27 28 IV. CONCLUSION The First Amended Complaint wholly fails to meet the pleading requirements to state a claim under lqbø|. For all the foregoing reasons, Defendants' motion to dismiss should be granted. Dated: January 27 ,2010 Respectfully submitted, KAREN J. KUBIN SAMANTHA P. GOODMAN MORRISON & FOERSTER IIP Attornevs for Defendants BRINKER INTERNATI ONAL, INC. and BRINKER RESTAURANT CORPORATION Defendants'Notice of Motion and Motion to Dismiss; Memorandum of Points and Authorities in Support Thereof la-1060400 9 Case3:10-cv-00213-VRW Document6 Filed01/27/10 Page10 of 10
