Spencer Leon Reed v. Autonation, Inc.

NOTICE OF MOTION AND MOTION to Dismiss Case

C.D. Cal.March 16, 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 AUTONATION’S NOTICE OF MOTION AND MOTION TO DISMISS Christopher C. Hoffman (SBN 176334) choffman@fisherphillips.com Megan E. Walker (SBN 299834) mewalker@fisherphillips.com FISHER & PHILLIPS LLP 4747 Executive Drive, Suite 1000 San Diego, CA 92121 Telephone: (858) 597-9610 Facsimile: (858) 597-9601 Daniel F. Katz (pro hac vice) dkatz@wc.com Edward C. Barnidge (pro hac vice) ebarnidge@wc.com WILLIAMS & CONNOLLY LLP 725 Twelfth Street, N.W. Washington, DC 20005 Telephone: (202) 434-5000 Facsimile: (202) 434-5029 Attorneys for Defendant AutoNation, Inc. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION SPENCER LEON REED, individually and on behalf of others similarly situated, Plaintiff, v. AUTONATION, INC.; and DOES 1 through 10, inclusive, Defendants. Case No.: 2:16-cv-08916 BRO(AGRx) DEFENDANT AUTONATION’S NOTICE OF MOTION AND MOTION TO DISMISS Date: Monday, April 24, 2017 Time: 1:30pm Place: Court Room 7C, 350 West 1st St., Honorable Beverly Reid O’Connell [Concurrently filed with Memorandum in Support of Motion to Dismiss and [Proposed] Order] Case 2:16-cv-08916-BRO-AGR Document 38 Filed 03/16/17 Page 1 of 2 Page ID #:250 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that, by its undersigned counsel, Defendant AutoNation, Inc., respectfully moves the Court to dismiss Plaintiff’s Second Amended Complaint under Federal Rule of Civil Procedure 12(b)(6). This motion is made following a conference of counsel pursuant to L.R. 7-3, which took place on March 7, 2017. Counsel attempted to resolve the dispute in good faith, but were unable to do so. The reasons supporting this Motion are set forth in the accompanying Memorandum in Support of the Motion to Dismiss and accompanying exhibit, which are incorporated herein. This motion will be heard on Monday, April 24, 2017, at 1:30pm in Courtroom 7C of the above-entitled Court, located at 350 West 1st Street, Los Angeles, California 90012, or at such time and place ordered by the Court. Dated: March 16, 2017 WILLIAMS & CONNOLLY LLP By: /s/ Edward C. Barnidge Edward C. Barnidge (pro hac vice) ebarnidge@wc.com Daniel F. Katz (pro hac vice) dkatz@wc.com FISHER & PHILLIPS LLP Christopher C. Hoffman choffman@fisherphillips.com Megan E. Walker mewalker@fisherphillips.com Attorneys for Defendant AutoNation, Inc. Case 2:16-cv-08916-BRO-AGR Document 38 Filed 03/16/17 Page 2 of 2 Page ID #:251 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 Christopher C. Hoffman (SBN 176334) choffman@fisherphillips.com Megan E. Walker (SBN 299834) mewalker@fisherphillips.com FISHER & PHILLIPS LLP 4747 Executive Drive, Suite 1000 San Diego, CA 92121 Telephone: (858) 597-9610 Facsimile: (858) 597-9601 Daniel F. Katz (pro hac vice) dkatz@wc.com Edward C. Barnidge (pro hac vice) ebarnidge@wc.com WILLIAMS & CONNOLLY LLP 725 Twelfth Street, N.W. Washington, DC 20005 Telephone: (202) 434-5000 Facsimile: (202) 434-5029 Attorneys for Defendant AutoNation, Inc. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION SPENCER LEON REED, individually and on behalf of others similarly situated, Plaintiff, v. AUTONATION, INC.; and DOES 1 through 10, inclusive, Defendants. Case No.: 2:16-cv-08916 BRO(AGRx) MEMORANDUM IN SUPPORT OF DEFENDANT AUTONATION, INC.’S MOTION TO DISMISS Date: April 24, 2017 Time: 1:30PM Place: Court Room 7C - 350 West 1st Street, Honorable Beverly Reid O’Connell [Concurrently filed with Notice of Motion and Motion to Dismiss and [Proposed] Order]] Case 2:16-cv-08916-BRO-AGR Document 38-1 Filed 03/16/17 Page 1 of 21 Page ID #:252 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 TABLE OF CONTENTS I. INTRODUCTION ........................................................................................... 1 II. BACKGROUND ............................................................................................. 2 III. ARGUMENT ................................................................................................... 3 A. Plaintiff’s Claims Must Be Dismissed under Rule 12(b)(6) for Failure To State a Claim. ...................................................................... 3 1. Plaintiff’s Overtime, Minimum Wage, Accurate Wage Statement, and Final Wages Claims Fail as a Matter of Law. ... 3 2. Plaintiff’s Request for Injunctive Relief Must Be Dismissed Because He Lacks Standing To Seek This Remedy. .................. 8 3. Plaintiff Has Failed To Allege Sufficient Facts To Support Any of His Claims. ..................................................................... 9 B. Plaintiff’s Claims Fall Within the Scope of the Parties’ Valid Arbitration Agreement. ....................................................................... 13 1. The Class-Action Waiver Is Invalid under Controlling Precedent, but That Issue Is Pending Before the Supreme Court. ........................................................................................ 13 2. The Arbitration Agreement Applies To All but One of Plaintiff’s Claims. ..................................................................... 14 IV. CONCLUSION ............................................................................................. 15 Case 2:16-cv-08916-BRO-AGR Document 38-1 Filed 03/16/17 Page 2 of 21 Page ID #:253 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 ii TABLE OF AUTHORITIES FEDERAL CASES Abad v. Gen. Nutrition Centers, Inc., 2013 WL 4038617 (C.D. Cal. Mar. 7, 2013) ..................................................................................................................... 6 Am. Express Co. v. Italian Colors Rest., --- U.S. ----, 133 S.Ct. 2304 (2013) ...................................................................................................................... 14 Anderson v. Blockbuster Inc., No. 2:10-cv-00158-MCE-GGH, 2010 WL 1797249 (E.D. Cal. May 4, 2010) ................................................................... 12 Ashcroft v. Iqbal, 556 U.S. 662 (2009) ...................................................................... 2, 9 AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011) .......................................... 13 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) ................................................... 9 Boon v. Canon Business Solutions, Inc., 592 Fed. App’x 631 (9th Cir. 2015) ......................................................................................................................... 9 Byrd v. Masonite Corp., No. EDCV 16-35 JGB (KKX), 2016 WL 756523 (C.D. Cal. Feb. 25, 2016) ................................................................ 9, 10, 12 Dilts v. Penske Logistics, LLC, 769 F.3d 637 (9th Cir. 2014) ....................................... 7 Cellular Sales of Missouri, LLC v. NLRB, 824 F.3d 772 (8th Cir. 2016) ................... 14 Chiron Corp. v. Ortho Diagnostic Sys., Inc., 207 F.3d 1126 (9th Cir. 2000) ....................................................................................................................... 13 CompuCredit Corp. v. Greenwood, 565 U.S. 95 (2012) ............................................. 14 Culley v. Lincare Inc., No. 215CV00081MCECMK, 2017 WL 698273 (E.D. Cal. Feb. 21, 2017) ...................................................................................... 6, 7 Ellis v. Costco Wholesale Corp., 657 F.3d 970 (9th Cir. 2011) .................................... 8 Ernst & Young, LLP v. Morris, No. 16-300, 2017 WL 125665 (U.S. Jan. 13, 2017) ................................................................................................................... 2 Finder v. Leprino Foods Co., 2015 WL 1137151 (E.D. Cal. Mar. 12, 2015) ......................................................................................................................... 6 Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991) ................................... 14 Case 2:16-cv-08916-BRO-AGR Document 38-1 Filed 03/16/17 Page 3 of 21 Page ID #:254 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 iii Guerrero v. Halliburton Energy Servs., Inc., No. 1:16-CV-1300-LJO- JLT, 2016 WL 6494296 (E.D. Cal. Nov. 2, 2016) ........................................... 10, 11 Harding v. Time Warner, Inc., No. 09cv1212-WQH-WMC, 2009 WL 2575898 (S.D. Cal. Aug. 18, 2009) ........................................................................ 12 Henryhand v. Digital Sys. LLC, 2014 WL 11728721 (C.D. Cal. May 19, 2014) ..................................................................................................................... 6, 7 Jones v. Spherion Staffing, LLC, 2012 WL 3264081 (C.D. Cal., Aug. 7, 2012) ..................................................................................................................... 6, 7 Kilgore v. KeyBank, Nat’l Ass’n, 718 F.3d 1052 (9th Cir. 2013) ............................... 13 Landers v. Quality Communications, Inc., 771 F.3d 638 (9th Cir. 2014) ..... 1, 9, 10, 11 Lewis v. Casey, 518 U.S. 343 (1996) ............................................................................. 8 Mata v. Manpower Inc., No. 14-CV-03787-LHK, 2016 WL 948997 (N.D. Cal. Mar. 14, 2016) ....................................................................................... 13 Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097 (9th Cir. 2008) ............... 4, 9 Milligan v. Am. Airlines, Inc., 327 F. App’x 694 (9th Cir. 2009) ................................. 8 Miranda v. Coach, Inc., No. 14-CV-02031-JD, 2015 WL 636373 (N.D. Cal. Feb. 13, 2015) ................................................................................................... 8 Morris v. Ernst & Young, LLP, 834 F.3d 975 (9th Cir. 2016), cert. granted, No. 16-300, 2017 WL 125665 (U.S. Jan. 13, 2017) ............................ 2, 13 Nguyen v. Baxter Healthcare Corp., 2011 WL 6018284 (C.D. Cal., Nov. 28, 2011) ................................................................................................................... 6 Ortiz v. Randstad N. Am., L.P., No. C-13-5050 MMC, 2015 WL 1152177 (N.D. Cal. Mar. 12, 2015).......................................................................... 5 Ovieda v. Sodexo Operations, LLC, No. CV 12-1750-GHK SSX, 2012 WL 1627237 (C.D. Cal. May 7, 2012) ................................................................... 11 Pena v. Taylor Farms Pacific, 2014 WL 1665231 (E.D. Cal., April 23, 2014) ..................................................................................................................... 6, 7 Perez v. Wells Fargo & Co., 75 F. Supp. 3d 1184 (N.D. Cal. 2014) .......................... 10 Case 2:16-cv-08916-BRO-AGR Document 38-1 Filed 03/16/17 Page 4 of 21 Page ID #:255 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 iv Pyara v. Sysco Corp., No. 215CV01208JAMKJN, 2016 WL 3916339 (E.D. Cal. July 20, 2016) .......................................................................................... 6 Raphael v. v. Tesoro Ref. & Mktg. Co. LLC, No. 2:15-CV-02862-ODW EX, 2015 WL 4127905 (C.D. Cal. July 8, 2015) ................................................... 10 Ramirez v. Manpower, Inc., No. 5:13-CV-2880-EJD, 2014 WL 116531 (N.D. Cal. Jan. 10, 2014) .......................................................................................... 9 Ritenour v. Carrington Mortg. Servs. LLC, No. SACV1602011CJCDFMX, 2017 WL 59069 (C.D. Cal. Jan. 5, 2017) ................... 4 Rodriguez v. Old Dominion Freight Line, Inc., No. CV 13-891 DSF RZX, 2013 WL 6184432 (C.D. Cal. Nov. 27, 2013) ........................................... 4, 7 Sakkab v. Luxottica Retail N. Am., Inc., 803 F.3d 425 (9th Cir. 2015) ....................... 14 Sandoval v. Ali, 34 F. Supp. 3d 1031 (N.D. Cal. 2014) .............................................. 13 Shann v. Durham Sch. Servs., L.P., 182 F. Supp. 3d 1044 (C.D. Cal. 2016) ....................................................................................................................... 10 Silva v. AvalonBay Communities, Inc., No. LACV1504157JAKPLAX, 2015 WL 11422302 (C.D. Cal. Oct. 8, 2015) .......................................................... 8 Singletary v. Teavana Corp., No. 5:13-CV-01163-PSG, 2014 WL 1760884 (N.D. Cal. May 2, 2014) ............................................................................ 7 Starr v. Baca, 652 F.3d 1202 (9th Cir. 2011) ................................................................ 9 Sutherland v. Ernst & Young LLP, 726 F.3d 290 (2d Cir. 2013) ................................ 15 Tan v. GrubHub, Inc., 171 F. Supp. 3d 998 (N.D. Cal. 2016) .......................... 9, 10, 12 Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011) ................................................... 8 Walsh v. Nev. Dep’t of Human Res., 471 F.3d 1033 (9th Cir. 2006) ............................ 8 Weigele v. FedEx Ground Package Sys., No. 06-CV-1330 JLS (POR), 2010 WL 4723673 (S.D. Cal. Nov. 15, 2010) ........................................................ 12 Wert v. Bancorp, No. 13-cv-3130-BAS(BLM), 2014 WL 2860287 (S.D. Cal. June 23, 2014) ................................................................................................. 10 Case 2:16-cv-08916-BRO-AGR Document 38-1 Filed 03/16/17 Page 5 of 21 Page ID #:256 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 v STATE CASES Iskanian v. CLS Transp. Los Angeles, LLC, 59 Cal. 4th 348 (2014) .......................... 14 Kirby v. Immoos Fire Prot., Inc., 53 Cal. 4th 1244 (2012) ............................... 4, 5, 6, 7 Murphy v. Kenneth Cole Prods., Inc., 40 Cal. 4th 1094 (2007) ................................ 4, 7 OTHER AUTHORITIES California Business and Professions Code § 17200 ...................................................... 8 California Labor Code § 201 ................................................................................... 7, 11 California Labor Code § 202 ................................................................................... 7, 11 California Labor Code § 203 ..................................................................................... 7, 8 California Labor Code § 226 ................................................................................. 5, 6, 7 California Labor Code § 226.7 ............................................................................. passim California Labor Code § 512 ......................................................................................... 3 California Labor Code § 1194 ................................................................................... 4, 5 Federal Rule of Civil Procedure 8 ....................................................................... 2, 4, 11 Federal Rule of Civil Procedure 12 ........................................................................... 1, 3 National Labor Relations Act, 29 U.S.C. §§ 157-158 ............................................. 2, 14 Private Attorney General Act of 2004, § 2699 .................................................. 1, 13, 14 Case 2:16-cv-08916-BRO-AGR Document 38-1 Filed 03/16/17 Page 6 of 21 Page ID #:257 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 I. INTRODUCTION On behalf of a large putative statewide class, Plaintiff Spencer Leon Reed alleges that, over a four month period, Defendant AutoNation, Inc. (“AutoNation”) violated the California Labor Code by interrupting his meal and rest breaks on an ad hoc basis in response to customer needs. See, e.g., Second Am. Compl. (“SAC”) ¶¶ 33-34, 40. Plaintiff gives no example of this purportedly illegal conduct, does not state how often it occurred, identifies no relevant company policy, and names no particular employees who interrupted his breaks or who had their breaks interrupted. Predicated on these conclusory meal and rest break allegations, Plaintiff asserts additional causes of action for failure to provide minimum wages, overtime wages, final wages, accurate wage statements, and record maintenance, as well as derivative claims under the Private Attorney General Act of 2004 (“PAGA”) and California’s Unfair Competition Law (“UCL”). For multiple reasons, Plaintiff’s Complaint must be dismissed for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Four of Plaintiff’s claims, along with his request for injunctive relief, are substantively infirm. Plaintiff’s Third, Fourth, Fifth, and Sixth claims-those for overtime wages, minimum wages, wages to discharged employees, and inaccurate wage statements-are invalid because California law does not allow those claims to be predicated on underlying meal or rest break violations. Likewise, because Plaintiff alleges that he is a former employee, his claim for injunctive relief must be dismissed for lack of standing. In addition, all of Plaintiff’s claims suffer from fatal pleading deficiencies. In support of the alleged meal and rest break violations, the backbone of this putative class action, Plaintiff alleges only a few generic facts that fall far short of the pleading standard established by the Ninth Circuit in Landers v. Quality Communications, Inc., 771 F.3d 638 (9th Cir. 2014), cert denied, 135 S. Ct. 1845 (2015). His eight other claims are devoid of facts, simply paraphrasing what each statute requires and concluding that AutoNation did not comply. Those “unadorned, the-defendant- Case 2:16-cv-08916-BRO-AGR Document 38-1 Filed 03/16/17 Page 7 of 21 Page ID #:258 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 unlawfully-harmed-me accusation[s]” similarly fall short of Rule 8’s pleading requirements. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). His claims should be dismissed for that reason as well.1 II. BACKGROUND Plaintiff was employed as a non-exempt sales associate at Ford Torrance, a dealership indirectly owned by AutoNation, for approximately four months in 2016. SAC ¶ 4. Plaintiff filed his Second Amended Complaint on February 6, 2017, alleging that AutoNation violated the California Labor Code by denying or cutting short mandatory meal and rest breaks. His factual allegations substantiating those claims are uninformative. See SAC ¶¶ 33-34, 40. Premised on those purported meal and rest break violations, Plaintiff alleges a parade of eight additional claims without providing any additional support. SAC ¶¶ 43-84. When Plaintiff applied for and accepted employment at Ford Torrance, he signed a binding arbitration agreement.2 That agreement instructed Plaintiff to “PLEASE READ THE PROVISIONS BELOW CAREFULLY,” including the following class- action waiver: Both Associate and the Company (as defined below) agree that any claim, dispute, and/or controversy between them which would otherwise require or allow resort to any court or other governmental dispute resolution forum arising from, related to, or having any relationship or connection whatsoever with Associate’s seeking employment with, employment by, 1 Out of an abundance of caution, AutoNation also includes herein a reservation of its right to move to compel arbitration of Plaintiff’s claims on an individual basis if the law on the validity of class-action waivers changes. AutoNation acknowledges that the Ninth Circuit has found employment agreements with class-action waivers like the one here unconscionable under the National Labor Relations Act, 29 U.S.C. §§ 157-158. See Morris v. Ernst & Young, LLP, 834 F.3d 975, 984 (9th Cir. 2016), cert. granted, 137 S. Ct. 809 (2017). The Supreme Court, however, recently granted a petition for certiorari in Ernst & Young to decide whether such agreements are enforceable. Ernst & Young, LLP v. Morris, 137 S. Ct. 809 (2017). 2 Plaintiff’s Sales Associate Pay Plan, which contains the relevant arbitration agreement, is attached as Exhibit A to the Declaration of Stephen Ferrara, which is attached to this filing as Exhibit 1. Case 2:16-cv-08916-BRO-AGR Document 38-1 Filed 03/16/17 Page 8 of 21 Page ID #:259 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 termination of employment from, or other association with the Company, shall be resolved through mandatory, neutral, binding arbitration on an individual basis only. . . . This Arbitration Agreement shall not be construed to allow or permit the consolidation or joinder of other claims or controversies involving any other allegedly aggrieved parties, and no matter whatsoever will proceed as a class action, collective action, private attorney general action or any similar representative action. . . . See Ex. A, ¶ 17(a) (emphasis added). The contract also included an express acknowledgment of the class-action waiver: “Associate understands and acknowledges that the terms of this Arbitration Agreement include a waiver of any substantive or procedural rights that Associate may have to bring or participate in an action on a class, collective, private attorney general, representative or other similar basis.” Id. ¶ 17(d). III. ARGUMENT A. Plaintiff’s Claims Must Be Dismissed under Rule 12(b)(6) for Failure To State a Claim. 1. Plaintiff’s Overtime, Minimum Wage, Accurate Wage Statement, and Final Wages Claims Fail as a Matter of Law. The crux of Plaintiff’s Complaint is that AutoNation violated the Labor Code by failing to provide employees an unpaid meal break of not less than thirty minutes for work in excess of five hours and a paid ten minute rest period for each four hours worked. Cal. Lab. Code §§ 512(a) & 226.7. Section 226.7(c) of the Labor Code specifies the remedy for meal or rest break violations-“the employer shall pay the employee one additional hour of pay at the employee’s regular rate of compensation for each workday that the meal or rest . . . period is not provided.” In four of his claims, Plaintiff attempts to bootstrap AutoNation’s purported meal and/or rest break violations to seek other remedies under statutes governing overtime and minimum wages, accurate wage statements, and final wages. See SAC ¶¶ 43-66. Each of these claims must be dismissed because California law does not allow those claims to be Case 2:16-cv-08916-BRO-AGR Document 38-1 Filed 03/16/17 Page 9 of 21 Page ID #:260 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 4 predicated on meal and rest break violations.3 Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008) (requiring dismissal where claim “lacks a cognizable legal theory”). a. Plaintiff’s Third and Fourth Claims Fail Because California Law Precludes Basing Minimum Wage and Overtime Claims on Missed Meal Breaks. Plaintiff bases his Third and Fourth claims-his minimum wage and overtime claims under California Labor Code § 1194 and related provisions-on his claim for missed meal breaks under § 226.7. See SAC ¶¶ 45-46 (minimum wage claim); ¶ 52 (overtime claim). However, meal break violations cannot provide the basis for overtime and minimum wage claims in California. To the contrary, the California Supreme Court has held that “[s]ection 226.7 provides the only compensation” for break violations: an additional hour of pay. Murphy v. Kenneth Cole Prods., Inc., 40 Cal. 4th 1094, 1104 (2007) (emphasis added); see id. at 1107 (holding that the remedy in § 226.7 “provides the sole compensation for the employee’s injuries”). Consistent with Murphy, the California Supreme Court has held expressly that an employee cannot seek redress for meal break violations under § 1194, which provides both the private right of action and fee-shifting for “any employee receiving 3 To the extent Plaintiff’s conclusory claims in its Third, Fourth, Fifth, and Sixth claims are based on violations other than meal break violations, those claims must be dismissed for failing to meet Rule 8’s minimum pleading standard, as explained in Section III.A.3, infra. See, e.g., Rodriguez v. Old Dominion Freight Line, Inc., No. CV 13-891 DSF RZX, 2013 WL 6184432, at *6 (C.D. Cal. Nov. 27, 2013) (dismissing claims where “[i]t is unclear from the Complaint whether Plaintiffs’ § 226(a) claim is predicated entirely on their failed meal and rest break claims”), abrogated on other grounds by Dilts v. Penske Logistics, LLC, 769 F.3d 637, 641 n.1 (9th Cir. 2014); Ritenour v. Carrington Mortg. Servs. LLC, No. SACV1602011CJCDFMX, --- F. Supp. 3d ---, 2017 WL 59069, at *6 (C.D. Cal. Jan. 5, 2017) (dismissing “causes of action for failure to pay wages timely upon discharge” because they “contain no description of what wages were due, when they were due, and when, if at all, they were paid” (emphasis added)). Case 2:16-cv-08916-BRO-AGR Document 38-1 Filed 03/16/17 Page 10 of 21 Page ID #:261 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 5 less than the legal minimum wage or the legal overtime compensation.” Kirby v. Immoos Fire Prot., Inc., 53 Cal. 4th 1244, 1251 (2012) (internal quotation marks omitted). As a matter of statutory interpretation, the Kirby court held that § 1194’s fee- shifting provision does not apply to a § 226.7 claim. Id. at 1253-55. The court held that § 1194 concerns only “ordinary minimum wage and overtime obligations,” flatly rejecting the Plaintiff’s argument that § 226.7’s additional hour of pay for missed breaks “is tantamount to a statutorily prescribed minimum wage” or overtime wage. Id. at 1252. The court noted the plaintiff’s inability “to identify a single case since [§ 1194’s] adoption almost 100 years ago interpreting it to apply to anything other than claims for unpaid minimum wages or, starting in 1961, unpaid overtime compensation.” Id. at 1255. Post-Kirby, the Northern District of California in Ortiz v. Randstad North America, L.P., No. C-13-5050 MMC, 2015 WL 1152177, at *2 (N.D. Cal. Mar. 12, 2015), held the alleged employer “[was] entitled to summary judgment” to the extent the plaintiff’s claims under § 1194 “[were] based on [the employer]’s alleged failure to pay [him] additional wages for meal and rest periods not provided.” So too here, because “a claim based on an employer’s failure to provide the additional pay required for [missed] meal and rest breaks . . . does not fall within the scope of § 1194,” id., Plaintiff’s claims must be dismissed as a matter of law. b. Plaintiff’s Fifth and Sixth Claims Fail Because California Law Precludes Basing Inaccurate Wage Statement and Final Wage Claims on Missed Meal and Rest Breaks. Similarly, Plaintiff’s Sixth claim for inaccurate wage statements under California Labor Code § 226 cannot be based on § 226.7 claims for missed meal and rest breaks. Section 226(a) requires employers to provide an “accurate itemized statement” of an employee’s wages that includes nine enumerated categories of information, including “wages earned.” But the California Supreme Court in Kirby held that “Section 226.7 is not aimed at protecting or providing employees’ wages.” Case 2:16-cv-08916-BRO-AGR Document 38-1 Filed 03/16/17 Page 11 of 21 Page ID #:262 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 53 Cal. 4th at 1255 (emphasis added). “Instead, the statute is primarily concerned with ensuring the health and welfare of employees by requiring that employees provide meal and rest periods [] mandated by the IWC.” Id. Indeed, an employer’s payment of the one-hour premium due under § 226.7 does not excuse the meal or rest break violation. Id. at 1256. A legion of cases hold that § 226-by its plain language and as interpreted by the California Supreme Court-does not permit inaccurate wage statement claims based on an employer’s failure to include information about payments for missed breaks. See, e.g., Culley v. Lincare Inc., No. 215CV00081MCECMK, 2017 WL 698273, at *8 (E.D. Cal. Feb. 21, 2017); Pyara v. Sysco Corp., No. 215CV01208JAMKJN, 2016 WL 3916339, at *7 (E.D. Cal. July 20, 2016); Henryhand v. Digital Sys. LLC, No. LA CV13-02735 JAK(AGRx), 2014 WL 11728721, at *13 (C.D. Cal. May 19, 2014); Pena v. Taylor Farms Pac., No. 2:13-cv-01282-KJM-AC, 2014 WL 1665231, at *9 (E.D. Cal., April 23, 2014); Jones v. Spherion Staffing, LLC, No. LA CVII-06462 JAK(JCx), 2012 WL 3264081, at *9 (C.D. Cal., Aug. 7, 2012). Section 226.7’s list of itemizations does not require information about payments for noncompliant meal and rest breaks. See § 226.7; Nguyen v. Baxter Healthcare Corp., No. 8:10-cv-01436-CJC(SSx), 2011 WL 6018284, at *8 (C.D. Cal., Nov. 28, 2011) (“[T]he plain language of Section 226(a) does not require that wage statement[s] include an itemized listing of any premium payments owed to [employees] for missed meal periods.”). Permitting a plaintiff to recover not only one hour of pay under § 226.7(c), but also additional payments under § 226(e) for meal and rest break violations, “would result in an improper, multiple recovery by the employee” contrary to § 226’s purpose of securing transparency. Jones, 2012 WL 3264081, at *9. Although a few courts have conflated the statement in Murphy that § 226.7 payments constitute a “premium wage” with the conclusion that § 226.7 payments constitute “wages earned” under § 226, see, e.g., Finder v. Leprino Foods Co., No. 1:13-cv-2059AWI, 2015 WL 1137151, at *5 (E.D. Cal. Mar. 12, 2015); Case 2:16-cv-08916-BRO-AGR Document 38-1 Filed 03/16/17 Page 12 of 21 Page ID #:263 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 7 Nutrition Ctrs., Inc., No. 09-00190-JVS(RNBx), 2013 WL 4038617, at *4 (C.D. Cal. Mar. 7, 2013), those courts are mistaken. The California Supreme Court has limited Murphy to its facts. See Kirby, 53 Cal. 4th at 1256 (“[W]e held in Murphy that this remedy [Section 226.7(b)] is a ‘wage’ for purposes of determining what statute of limitations applies to section 226.7 claims.” (emphasis added)). Because a § 226.7 payment “compensates the employee for events other than time spent working,” Murphy, 40 Cal. 4th at 1113, they are “‘premium wages,’ . . . not ‘wages earned,’” and therefore cannot form the basis for inaccurate wage statement claims. Pena, 2014 WL 1665231, at *9 (citation omitted); see Jones, 2012 WL 3264081, at *7 (noting cases holding that “meal and break premium pay is not an ‘earned wage’ within the meaning of section 226(a)”). Based on the same reasoning, courts also prohibit claims under California Labor Code §§ 201, 202, and 203 for failing to pay final wages based on missed meal and rest breaks. Under those sections, “the employer’s nonpayment of wages is the basis for the lawsuit.” Kirby, 53 Cal. 4th at 1256. By contrast, because an employer violates § 226.7 even if it pays the one hour of compensation provided thereunder, the underlying violation at issue in § 226.7 is not “nonpayment of wages,” but rather “non- provision of meal or rest breaks.” Id. at 1257. As a result, “Plaintiff cannot advance claims for . . . failure to pay wages due upon termination based solely on alleged violations of Section 226.7.” Henryhand, 2014 WL 11728721, at *13; see, e.g., Culley, 2017 WL 698273, at *8 (dismissing § 203 claim based on § 226.7 violations because Kirby “strongly indicates that failure to pay § 226.7 meal time penalties cannot support a claim for nonpayment of wages”); Jones, 2012 WL 3264081, at *9 (“Because the underlying violation that gives rise to a section 226.7 claim is not the nonpayment of wages, other claims premised on the nonpayment of wages do not arise.”); Singletary v. Teavana Corp., No. 5:13-CV-01163-PSG, 2014 WL 1760884, at *3 (N.D. Cal. May 2, 2014) (“Section 203 does not provide penalties for failure to pay rest break premiums.”); Rodriguez, 2013 WL 6184432, at *5 (“[A]n employer who owes an Case 2:16-cv-08916-BRO-AGR Document 38-1 Filed 03/16/17 Page 13 of 21 Page ID #:264 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 8 employee a premium wage under § 226.7 is not also liable for a violation of § 203.”). As a result, Plaintiff’s Fifth and Sixth claims for final wages and accurate wage statements fail to state a claim as a matter of law and must be dismissed. 2. Plaintiff’s Request for Injunctive Relief Must Be Dismissed Because He Lacks Standing To Seek This Remedy. Plaintiff’s Complaint seeks “preliminary and permanent injunctive relief enjoining Defendants from violating the relevant provisions of the California Labor Code and the IWC Wage Order” under California Business and Professions Code § 17200. SAC ¶ 79; SAC Prayer for Relief ¶ 5. But is it well-established that former employees, like Plaintiff, SAC ¶ 4, lack standing to pursue injunctive relief against their former employers. See, e.g., Ellis v. Costco Wholesale Corp., 657 F.3d 970, 988 (9th Cir. 2011) (“As the Supreme Court explained, only current employees have standing to seek injunctive relief.” (citing Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 365 (2011))); Walsh v. Nev. Dep’t of Human Res., 471 F.3d 1033, 1036-37 (9th Cir. 2006) (holding former employee “lacked standing to request injunctive relief to force the [former employer] to adopt and enforce lawful policies . . . .”); Silva v. AvalonBay Cmtys., Inc., No. LACV1504157JAKPLAX, 2015 WL 11422302, at *12 (C.D. Cal. Oct. 8, 2015); Miranda v. Coach, Inc., No. 14-CV-02031-JD, 2015 WL 636373, at *3 (N.D. Cal. Feb. 13, 2015). To have standing, “a plaintiff must show that she has (1) suffered an injury that (2) was caused by the defendant and (3) is likely to be redressed by the relief she seeks.” Walsh, 471 F.3d at 1036-37. Former employees seeking injunctive relief fail to satisfy the third prong, because they “would not stand to benefit from an injunction” affecting a former employer’s policies. Id. at 1037. This remains true even if the former employee purports to represent a class including current employees: “The fact that [the former employee] brought a class-action claim does not alter this analysis.” Milligan v. Am. Airlines, Inc., 327 F. App’x 694, 696 (9th Cir. 2009); see also Lewis v. Casey, Case 2:16-cv-08916-BRO-AGR Document 38-1 Filed 03/16/17 Page 14 of 21 Page ID #:265 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 9 518 U.S. 343, 357 (1996) (“That a suit may be a class action . . . adds nothing to the question of standing . . . .” (first ellipsis in original) (internal quotation marks omitted)); Ramirez v. Manpower, Inc., No. 5:13-CV-2880-EJD, 2014 WL 116531, at *7 (N.D. Cal. Jan. 13, 2014) (“[A] former employee lacks standing to seek prospective injunctive relief on behalf of a putative class containing both former and current employees.”). As a result, Plaintiff’s claims for injunctive relief must be dismissed. 3. Plaintiff Has Failed To Allege Sufficient Facts To Support Any of His Claims. All of Plaintiff’s claims fail because they lack “sufficient facts to support a cognizable legal theory.” Mendiondo, 521 F.3d at 1104. “[A] complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678 (internal quotation marks omitted). A “pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)); see also Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). Plaintiff’s barebones Complaint lacks the facts necessary to support the various Labor Code violations he alleges. a. Plaintiff’s Meal and Rest Break Claims Fail To Meet Landers’ Pleading Standard. First, Plaintiff’s First and Second claims for meal and rest break violations fail to meet the Ninth Circuit’s pleading standard for wage-and-hour claims. The Ninth Circuit in Landers v. Quality Communications, Inc. established that a Plaintiff must plead certain basic, contextual facts regarding the timing and extent of alleged labor violations to “establish a plausible claim.” 771 F.3d at 645.4 These include “estimating 4 Although Landers dealt with wage and hour claims under the Fair Labor Standards Act, courts have extended its reasoning to wage and hour claims under California law. See, e.g., Boon v. Canon Bus. Sols., Inc., 592 Fed. App’x 631, 632 (9th Cir. 2015); Tan v. GrubHub, Inc., 171 F. Supp. 3d 998, 1006 (N.D. Cal. 2016); Byrd, 2016 WL 756523, at *3. Case 2:16-cv-08916-BRO-AGR Document 38-1 Filed 03/16/17 Page 15 of 21 Page ID #:266 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 10 the length of her average workweek during the applicable period and the average rate at which she was paid [or] the amount of overtime wages she believes she is owed . . .” Id. “[A]t a minimum[,] the plaintiff must allege at least one workweek when he worked in excess of forty hours and was not paid for the excess hours in that workweek, or was not paid minimum wages.” Id. at 646 (emphasis added). District courts have interpreted Landers to require more than vague references to frequency of the violations: “Landers clarifies that mere conclusory allegations that class members ‘regularly’ or ‘regularly and consistently’ worked more than 40 hours per week- without any further detail-fall short of Twombly/Iqbal.” Tan v. GrubHub Inc., 171 F. Supp. 3d 998, 1007 (N.D. Cal. 2016) (quoting Perez v. Wells Fargo & Co., 75 F. Supp. 3d 1184, 1191 (N.D. Cal. 2014)); see also, e.g., Raphael v. v. Tesoro Ref. & Mktg. Co., No. 2:15-CV-02862-ODW EX, 2015 WL 4127905, at *3 (C.D. Cal. July 8, 2015) (dismissing wage and hour claims where plaintiff alleged the violations occurred “at all relevant times”); Wert v. U.S. Bancorp, No. 13-cv-3130-BAS(BLM), 2014 WL 2860287, at *5 (S.D. Cal., June 23, 2014) (dismissing wage and hour claims where plaintiff alleged the violations occurred “often”). Although Landers addressed only overtime and minimum wage claims, its reasoning “applies with equal force” to other alleged labor code violations. Byrd v. Masonite Corp., No. EDCV 16-35 JGB (KKx), 2016 WL 756523, at *3 (C.D. Cal. Feb. 25, 2016) (applying Landers to claims for failure to provide meal breaks, final wages, reimbursements, and accurate wage statements); Shann v. Durham Sch. Servs., L.P., 182 F. Supp. 3d 1044, 1048 (C.D. Cal. 2016). “Courts applying Landers to meal period violation allegations read Landers as requiring that a plaintiff plead at least one specific instance where he or she personally experienced a missed meal or rest period.” Guerrero v. Halliburton Energy Servs., Inc., No. 1:16-CV-1300-LJO-JLT, 2016 WL 6494296, at *5-6 (E.D. Cal. Nov. 2, 2016). Plaintiff’s meal and rest break claims fail the Landers test. Rather than allege any specific workday in which the alleged misconduct occurred, the Plaintiff’s claims Case 2:16-cv-08916-BRO-AGR Document 38-1 Filed 03/16/17 Page 16 of 21 Page ID #:267 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 11 merely conclude that Defendant failed to provide breaks at some point “[d]uring the class period”-a timeframe that encompasses four years. See SAC ¶ 32 (alleging only that Defendants failed to provide meal breaks “regularly” “[d]uring the class period”); ¶ 39 (alleging only that Defendants failed to provide rest breaks “[d]uring the class period”). Neither does the Complaint include details about any specific instances of purported break denials or interruptions “or any other facts that will permit the court to find plausibility.” Landers, 771 F.3d at 645. b. Plaintiff’s Remaining Claims Fail To Allege Any Relevant Facts. Plaintiff’s remaining eight claims are entirely bereft of facts, utterly failing Rule 8’s pleading standard. Each claim amounts to no more than boilerplate statements paraphrasing the requirements of the relevant California Labor Code provision, followed by an allegation that AutoNation violated them. See, e.g., SAC ¶¶ 61-62 (for final wages claim, alleging in conclusory fashion failure to pay statutorily required wages); ¶¶ 52-54 (for overtime claim, repeating statutory requirements and alleging various boilerplate violations); ¶¶ 64-65 (for accurate wage statement claim, repeating statutory requirements and alleging various boilerplate violations). In support of his Third and Fourth claims for failure to pay minimum wages and overtime, the Complaint “never once alleges the length of any shift worked by Plaintiff to show that Defendants’ various obligations under the Labor Code were triggered.” Ovieda v. Sodexo Operations, LLC, No. CV 12-1750-GHK SSX, 2012 WL 1627237, at *2 (C.D. Cal. May 7, 2012) (dismissing claim). In Plaintiff’s Fifth claim for final wages, he does not specify “what wages were earned and unpaid.” Guerrero, 2016 WL 6494296, at *8 (dismissing claim). In his Eighth claim for reimbursement for work-related expenditures, “Plaintiff never explicitly alleges that [he] [him]self was charged for a uniform or equipment, let alone that [his] job duties required [him] to wear a uniform or use specific equipment.” Ovieda, 2012 WL 1627237, at *2 (dismissing claim). Case 2:16-cv-08916-BRO-AGR Document 38-1 Filed 03/16/17 Page 17 of 21 Page ID #:268 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 Courts regularly dismiss claims that, like Plaintiff’s, simply allege that a Labor Code provision exists and conclude that the defendant violated it. See, e.g., Guerrero, 2016 WL 6494296, at *5-6; Weigele v. FedEx Ground Package Sys., No. 06-CV-1330 JLS (POR), 2010 WL 4723673, at *4-5 (S.D. Cal. Nov. 15, 2010) (dismissing complaint alleging that “Defendant required the Plaintiffs to work overtime without lawful compensation”); Anderson v. Blockbuster Inc., No. 2:10-cv-00158-MCE-GGH, 2010 WL 1797249, at *2-4 (E.D. Cal. May 4, 2010) (dismissing complaint alleging that “Plaintiff and class members consistently worked in excess of eight hours in a day, in excess of 12 hours in a day and/or in excess of 40 hours in a week” and that “Defendants willfully failed to pay all overtime”); Harding v. Time Warner, Inc., No. 09cv1212-WQH-WMC, 2009 WL 2575898, at *3-4 (S.D. Cal. Aug. 18, 2009) (dismissing complaint alleging that employer failed to “pay and properly calculate overtime” and “provide uninterrupted Meal Periods”). Indeed, another court in the Central District of California specifically rejected Plaintiff’s “pattern of (1) stating [Defendant-employer]’s obligations under California law as an employer; (2) averring simply that [Defendant-employer] violated the law by failing to comply with its obligations; and (3) claiming damages and an entitlement to penalties and other relief.” Byrd, 2016 WL 756523, at *2. In sum, Plaintiff’s Labor Code claims-and his derivative claims under the Private Attorney General Act of 2004 (“PAGA”) and Unfair Competition Law (“UCL”)-must be dismissed for failure to state a claim. See, e.g., Tan, 171 F. Supp. 3d at 1010-11 (“Where the UCL claim is premised on the same acts alleged in the complaint’s other causes of action, and those causes of action fail, the UCL claim likewise must be dismissed because the plaintiff has not adequately alleged any predicate unlawful acts.”). Case 2:16-cv-08916-BRO-AGR Document 38-1 Filed 03/16/17 Page 18 of 21 Page ID #:269 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 13 B. Plaintiff’s Claims Fall Within the Scope of the Parties’ Valid Arbitration Agreement. Plaintiff’s claims are potentially arbitrable, subject to the Supreme Court’s determination in Ernst & Young. When considering a motion to compel arbitration under the Federal Arbitration Act (“FAA”), a court must confirm that it has subject matter jurisdiction over the dispute5 and, if so, determine “‘(1) whether a valid agreement to arbitrate exists and, if it does, (2) whether the agreement encompasses the dispute at issue.’” Kilgore v. KeyBank, Nat’l Ass’n, 718 F.3d 1052, 1058 (9th Cir. 2013) (en banc) (quoting Chiron Corp. v. Ortho Diagnostic Sys., Inc., 207 F.3d 1126, 1130 (9th Cir. 2000)). 1. The Class-Action Waiver Is Invalid under Controlling Precedent, but That Issue Is Pending Before the Supreme Court. Arbitration agreements must be enforced subject only to “generally applicable contract defenses, such as fraud, duress, or unconscionability.” AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 339 (2011) (quotation marks omitted). The agreement instructed Plaintiff to read it “carefully,” Ex. A, ¶ 17; explained the class waiver in two different places, the latter instance in a separate, stand-alone section, id. at ¶ 17(a), (d); and included language above the signature line emphasizing that signing meant Plaintiff understood and would be bound by the arbitration agreement, id. at 6. Thus, 5 As will be described further in the parties’ forthcoming Federal Rule of Civil Procedure 26(f) statement, AutoNation intends to assert that it is not Plaintiff’s “employer” and that discovery should be bifurcated to permit an early resolution of that question. See, e.g., Ex. 1 to Def.’s Reply To Opp. To Mot. To Stay (Order Granting Summary Judgment, Djukich v. AutoNation, No. 2:16-cv-04455 (May 27, 2014) (O’Connell, J.)). Some courts have addressed that issue as a question of subject matter jurisdiction, see, e.g., Mata v. Manpower Inc., No. 14-CV-03787-LHK, 2016 WL 948997, at *8-11 (N.D. Cal. Mar. 14, 2016) (no standing where defendant was not plaintiff’s “employer” or “joint employer”); Sandoval v. Ali, 34 F. Supp. 3d 1031, 1041 (N.D. Cal. 2014) (same), in which case it should be decided before entry of an order compelling arbitration. Case 2:16-cv-08916-BRO-AGR Document 38-1 Filed 03/16/17 Page 19 of 21 Page ID #:270 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 14 Plaintiff knowingly agreed to arbitrate his claims on an individual basis. The only question is the validity of the class-action waiver. AutoNation recognizes that the class-action waiver in the parties’ arbitration agreement is invalid under controlling Ninth Circuit precedent. See Morris, 834 F.3d at 984. AutoNation outlines its position here for preservation purposes pending the Supreme Court’s decision in Ernst & Young. AutoNation contends that Morris is erroneous because the NLRA does not express “with [] clarity” a “contrary congressional command” that overrides the FAA. CompuCredit Corp. v. Greenwood, 565 U.S. 95, 98, 103 (2012) (internal quotation marks omitted). The Supreme Court has found that clearer statutory language than that contained in the relevant section of the NLRA, 29 U.S.C. § 157, lacked the necessary clarity to invalidate an arbitration agreement. See Morris, 834 F.3d at 992-994 (Ikuta, J., dissenting) (describing holdings in Am. Express Co. v. Italian Colors Rest., --- U.S. ----, 133 S. Ct. 2304, 2309 (2013); CompuCredit, 565 U.S. at 95; and Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 26 (1991)). Consistent with AutoNation’s position, the Second, Fifth, and Eighth Circuits have concluded that the NLRA does not contain the clear congressional command required to override the FAA. See Cellular Sales of Missouri, LLC v. NLRB, 824 F.3d 772, 775 (8th Cir. 2016); D.R. Horton Inc., v. NLRB, 737 F.3d 344, 362 (5th Cir. 2013); Sutherland v. Ernst & Young LLP, 726 F.3d 290, 297 n.8 (2d Cir. 2013) (per curiam). 2. The Arbitration Agreement Applies To Plaintiff’s Claims. There is no question the arbitration agreement encompasses all of Plaintiff’s claims alleging violations of California wage and hour laws arising from his employment. By its terms, the agreement extends to “any claim, dispute, and/or controversy between [the parties] . . . arising from, related to, or having any relationship or connection whatsoever with [Plaintiff’s] seeking employment with, employment by, termination of employment from, or other association with the Company.” Ex. A, ¶ 17(a). The agreement further “covers all theories and disputes,” including any Case 2:16-cv-08916-BRO-AGR Document 38-1 Filed 03/16/17 Page 20 of 21 Page ID #:271 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 15 “alleged violations of statute, regulation, or ordinance.” Id. To the extent Plaintiff’s claim brought under PAGA is not subject to individual arbitration, see Iskanian v. CLS Transp. L.A., LLC, 59 Cal. 4th 348 (2014); Sakkab v. Luxottica Retail N. Am., Inc., 803 F.3d 425 (9th Cir. 2015), that claim should be stayed pending arbitration of the arbitrable claims, as the parties agreed in the arbitration agreement, in order to “increase efficiencies, decrease costs, and further the interests of justice,” Ex. A, § 17(f) (“Severability and Related Matters”). IV. CONCLUSION For the foregoing reasons, AutoNation respectfully requests that the Court dismiss the Second Amended Complaint under Rule 12(b)(6). Dated: March 16, 2017 WILLIAMS & CONNOLLY LLP By: /s/ Edward C. Barnidge Daniel F. Katz (pro hac vice) dkatz@wc.com Edward C. Barnidge (pro hac vice) ebarnidge@wc.com FISHER & PHILLIPS LLP Christopher C. Hoffman choffman@fisherphillips.com Megan E. Walker mewalker@fisherphillips.com Attorneys for Defendant AutoNation, Inc. Case 2:16-cv-08916-BRO-AGR Document 38-1 Filed 03/16/17 Page 21 of 21 Page ID #:272 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION SPENCER LEON REED, individually and on behalf of others similarly situated, Plaintiff, v. AUTONATION, INC.; and DOES 1 through 10, inclusive, Defendants. Case No.: 2:16-cv-08916 BRO(AGRx) [PROPOSED] ORDER GRANTING DEFENDANT AUTONATION’S MOTION TO DISMISS [Concurrently filed with Notice of Motion and Memorandum in Support of Motion to Dismiss] Having reviewed and considered Defendant AutoNation’s Motion to Dismiss, together with all of the briefing and argument related thereto, and being otherwise fully advised, the Court hereby GRANTS said Motion and dismisses Plaintiff’s claims for failure to state a claim, pursuant to Federal Rule of Civil Procedure 12(b)(6). Plaintiff’s Third, Fourth, Fifth, and Sixth Causes of Action-those for overtime wages, minimum wages, wages to discharged employees, and inaccurate wage statements-are invalid as a matter of law. Each is based on Plaintiff’s alleged missed meal and/or rest breaks. SAC ¶¶ 43-66. However, California law does not allow these causes of action to be predicated on underlying meal or rest break claims. See, e.g., Ortiz v. Randstad N. Am., L.P., No. C-13-5050 MMC, 2015 WL 1152177, at *2 (N.D. Cal. Mar. 12, 2015) (claims for overtime and minimum cannot be based on missed meal breaks); Jones v. Spherion Staffing, LLC, No. LA CV11-06462 JAK (JCx), 2012 WL 3264081, at *7-9 (C.D. Cal., Aug. 7, 2012) (claims for final wages and for inaccurate wage statements cannot be based on missed meal or rest breaks). Case 2:16-cv-08916-BRO-AGR Document 38-2 Filed 03/16/17 Page 1 of 3 Page ID #:273 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 Accordingly, these four causes of action must be dismissed for failure to state a claim as a matter of law. All of Plaintiff’s claims also suffer from fatal pleading deficiencies. Plaintiff’s First and Second Causes of Action, for noncompliant meal and rest breaks, fail to meet the Ninth Circuit’s pleading standard for wage-and-hour claims. Landers v. Quality Communications, Inc., 771 F.3d 645 (9th Cir. 2014), established that Plaintiffs must plead certain basic, contextual facts regarding the timing and extent of alleged labor violations to “establish a plausible claim.” Id. at 645. “[A]t a minimum, the plaintiff must allege at least one workweek when he worked in excess of forty hours and was not paid for the excess hours in that workweek, or was not paid minimum wages.” Id. at 646 (emphasis added). Plaintiff’s First and Second Causes of Action fail to include any such allegations. The remaining causes of action merely paraphrase what each statute requires and conclude that AutoNation did not comply. Those “unadorned, the- defendant-unlawfully-harmed-me accusation[s]” do not satisfy Rule 8’s pleading requirements. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Finally, Plaintiff’s claim for injunctive relief fails because former employees like Plaintiff, see SAC ¶ 4, lack standing to pursue such claims. See, e.g., Ellis v. Costco Wholesale Corp., 657 F.3d 970, 988 (9th Cir. 2011); Walsh v. Nev. Dep’t of Human Res., 471 F.3d 1033, 1036-37 (9th Cir. 2006). Former employees seeking injunctions fail to satisfy Article III’s redressability prong, as they “would not stand to benefit from an injunction” affecting a former employer’s policies. Walsh, 471 F.3d at 1036-37. For the reasons stated, Plaintiff’s Third, Fourth, Fifth, and Sixth Causes of Action, and his claim for injunctive relief under his Tenth Cause of Action, are dismissed with prejudice. His First, Second, Seventh, and Eighth Causes of Action, as well as derivative Ninth and Tenth Causes of Action, are dismissed without prejudice. IT IS SO ORDERED. Case 2:16-cv-08916-BRO-AGR Document 38-2 Filed 03/16/17 Page 2 of 3 Page ID #:274 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 Dated: _____________________ ______________________________ Hon. Beverly Reid O’Connell United States District Judge for the Central District of California Case 2:16-cv-08916-BRO-AGR Document 38-2 Filed 03/16/17 Page 3 of 3 Page ID #:275