Amador-Stewart v. Snooze HIC, LLC

• Court: District Court, S.D. California
• Decided: September 23, 2019
• Docket: 3:18-cv-01604
• Status: Unknown

Opinion

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8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10

11 TRINITY AMADOR-STEWART CASE NO. 18cv01604-LAB-MDD

Plaintiff, 12 ORDER GRANTING IN PART MOTION vs. TO DISMISS 13

SNOOZE HIC LLC and DOES 1 14 through 100, inclusive, 15 Defendants. 16 17 18 Plaintiff Trinity Amador-Stewart brought this putative class action against 19 Defendant Snooze HiC, LLC for unpaid overtime under the Fair Labor Standards Act 20 (FLSA) and California Labor Code, seeking unpaid overtime, unpaid compensation for 21 interrupted and/or missed meal and rest periods, and failure to pay minimum wage. She 22 also seeks interest, penalties, costs, and attorney’s fees. She amended her complaint 23 once, so the amended complaint (“FAC”) is the operative pleading. 24 Snooze moved to dismiss. (Docket no. 6.) Amador-Stewart filed an opposition 25 (Docket no.9), and Snooze filed a reply brief. (Docket no. 11.) Then Amador-Stewart filed 26 a second opposition (Docket no. 12) and withdrew her earlier opposition. The motion is 27 now fully briefed and ready for decision. 28 / / / 1 Legal Standards 2 A motion to dismiss tests the sufficiency of the complaint. Navarro v. Block, 250 3 F.3d 729, 732 (9th Cir. 2001). “Factual allegations must be enough to raise a right to relief 4 above the speculative level . . . .” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 5 (2007). “[S]ome threshold of plausibility must be crossed at the outset” before a case is 6 permitted to proceed. Id. at 558 (citation omitted). To meet the ordinary pleading standard 7 and avoid dismissal, a complaint must plead “enough facts to state a claim to relief that 8 is plausible on its face.” Id. at 570. The well-pleaded facts must do more than permit the 9 Court to infer “the mere possibility of misconduct”; they must show that the pleader is 10 entitled to relief. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). Where a complaint pleads 11 facts that are “merely consistent with” the defendant’s liability, it “stops short of the line 12 between possibility and plausibility.” Id. at 678 (quoting Twombly, 550 U.S. at 557). 13 When determining whether a complaint states a claim, the Court accepts all 14 allegations of material fact in the complaint as true and construes them in the light most 15 favorable to the non-moving party. Cedars-Sinai Medical Center v. National League of 16 Postmasters of U.S., 497 F.3d 972, 975 (9th Cir. 2007) (citation omitted). The Court does 17 not weigh evidence or make credibility determinations. Acosta v. City of Costa Mesa, 718 18 F.3d 800, 828 (9th Cir. 2013). At the same time, the Court is “not required to accept as 19 true conclusory allegations which are contradicted by documents referred to in the 20 complaint,” and does “not . . . necessarily assume the truth of legal conclusions merely 21 because they are cast in the form of factual allegations.” Warren v. Fox Family Worldwide, 22 Inc., 328 F.3d 1136, 1139 (9th Cir. 2003) (citations and quotation marks omitted). 23 Normally class allegations are tested by a motion for class certification, although 24 “[s]ometimes the issues are plain enough from the pleadings to determine whether the 25 interests of the absent parties are fairly encompassed within the named plaintiff's claim.” 26 Gen. Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 160 (1982). Some courts have struck 27 class allegations where it is clear from the pleadings that class claims cannot be 28 maintained. See, e.g., Sanders v. Apple Inc., 672 F. Supp. 2d 978, 990 (N.D. Cal. 2009). 1 The pleading standard for FLSA claims is set forth in Landers v. Quality 2 Communications Inc., 771 F.3d 638 (9th Cir. 2014), which also provides guidance for 3 wage and hour claims more generally. Under this standard, “detailed factual allegations 4 regarding the number of [hours or] overtime hours worked are not required to state a 5 plausible claim”; neither is an estimate of “how much uncompensated time was [worked], 6 how often, and at what rate.” Id. at 644. But she must plead facts sufficient to demonstrate 7 the plausibility, rather than the mere possibility, of her minimum wage and overtime wages 8 claims. Id. at 646. One way to establish a plausible claim is by estimating the length of 9 her average workweek during the applicable period, the average rate at which she was 10 paid, and the amount of wages she believes she is owed. Id. at 645. The same pleading 11 standards apply to state law claims. Haralson v. United Airlines, Inc., 224 F. Supp. 3d 12 928, 940-942 (N.D. Cal. 2016) (applying the Landers standard to California minimum 13 wage law, overtime wage and meal and rest break claims). 14 The FLSA averages all hours worked in any work week to compute an employer’s 15 minimum wage obligation. Douglas v. Xerox Bus. Servs., LLC, 875 F.3d 884, 890 (9th 16 Cir. 2017). Therefore, “If an employee works less than 40 hours per week, there is no 17 [FLSA] minimum wage violation if the employee's number of hours worked divided by 18 wages received is above the FLSA's minimum wage requirements.” Perez v. Wells Fargo 19 & Co., 75 F. Supp. 3d 1184, 1192 (N.D. Cal. 2014). 20 Factual Allegations 21 Amador-Stewart was a server in one of Snooze’s San Diego restaurants. The FAC 22 does not say which restaurant, when she was employed,1 her usual schedule, or whether 23 her compensation included tips, nor does it provide any other details of her employment. 24

25 1 As putative class representative, Amador-Stewart was required to plead facts showing that she is a member of the classes she intends to represent. See Gen. Tel. Co. of 26 Southwest, 457 U.S. at 156. The class definition includes an employment date, so she should have pled facts showing she was employed after that date. Snooze HIC 27 represents that she worked there in 2017 and 2018, which she neither confirms nor 28 disputes. 1 Amador-Stewart points out that she has not had an opportunity for discovery. She 2 is not entitled to discovery until she has pled a claim, however. See Iqbal, 556 U.S. at 686 3 (holding that where a complaint failed to state a cognizable federal claim, the plaintiff was 4 “not entitled to discovery, cabined or otherwise”). But even if she were, she knows or 5 should easily be able to find out basic facts about her employment. To the extent the 6 pleading standard may require her to allege facts such as these, there is no need to wait 7 until the discovery phase before requiring her to plead them. Nor is it appropriate to relax 8 the pleading standard until discovery, given that she already has (or has had) access to 9 this information. See Gavaldon v. StanChart Securities Int’l., 2019 WL 764031, slip op. 10 at *2 (S.D. Cal., Feb. 20, 2019) (citing Ebeid ex rel. U.S. v. Lungwitz, 616 F.3d 993, 999 11 (9th Cir. 2010)) (holding that a relaxed pleading standard is inappropriate where 12 information needed to plead a claim is or has been within the plaintiff’s control). 13 Amador-Stewart cites Landers, 771 F.3d at 645 for the proposition that most or all 14 of the relevant information is likely to be in a defendant’s control. But Landers concerns 15 itself with “detailed information concerning a plaintiff-employee’s compensation and 16 schedule,” such as records that would allow her to estimate her average workweek and 17 the average rates of pay. Id. Ordinary facts of employment such as her ordinary hourly 18 pay rate are the type of thing most workers know. Workers have access to some 19 information in the form of W-2’s, their own bank records, and the like. And if a plaintiff 20 knows enough to allege that her employer engaged in certain practices, she would also 21 ordinarily know whether those things ever happened to her. For example, if she can allege 22 in good faith that workers were permitted, encouraged, or required to work unpaid 23 overtime (FAC, ¶¶ 5–6), she should also know whether she herself ever performed unpaid 24 overtime. She would likely also know general facts such as her typical schedule, the 25 number of hours in a typical work period, how and when she was permitted or required to 26 work overtime without extra pay, and what work she did during those times. See Avalos 27 v. Amazon.com LLC, 2018 WL 3917970, at *4 (E.D. Cal., Aug. 14, 2018) (suggesting that 28 plaintiff could and should have alleged facts such as these in support of her conclusory 1 overtime allegations). See also Boon v. Canon Bus. Solutions, Inc., 592 Fed. Appx. 631, 2 632 (“Boon identified tasks for which he was not paid . . . .”) 3 To be clear, there is no checklist of facts that must be pled in a wage and hour 4 action. See Landers, 771 F.3d at 645 (plausibility of a claim is “context-specific”). But 5 facts such as these can help make a claim plausible rather than merely conclusory. For 6 example, numerous cases have examined whether particular activities amount to 7 compensable work, and have come to different conclusions based on the facts and law 8 of the cases. Depending on what other facts are pled, a plaintiff’s assertion that she 9 performed “compensable” overtime work may not be enough to render her claim 10 plausible, particularly if there is no way to know her basis for determining what activities 11 are compensable. 12 The FAC avoids saying what Amador-Stewart’s ordinary hourly pay rate was. 13 Snooze represents that she was paid $11.50. In her opposition, Amador-Stewart neither 14 confirms nor denies this, although she knows or could find out whether it is accurate. 15 Certainly she would know whether $11.50 was close to the right figure, or whether she 16 was paid much less (e.g., $7.25 per hour). Without assuming that her hourly pay rate was 17 actually $11.50, the Court assumes that it could have been $11.50, or some other amount. 18 Discussion of Claims 19 FLSA Minimum Wage Claims 20 A plaintiff must plead facts that give rise to a plausible inference that she was not 21 paid FLSA minimum wage. Landers, 771 F 3d. at 645; Tan v. GrubHub, Inc., 171 F. Supp. 22 3d 998, 1008 (2016). Amador-Stewart has made wholly conclusory allegations that 23 Snooze paid her and putative class members less than the minimum wage, or an 24 otherwise substandard wage. (See FAC ¶¶ 19, 40, 48.) She alleges that the federally- 25 / / / 26 / / / 27 / / / 28 / / / 1 mandated wage was $7.25,2 but does not say what she was paid, or provide any other 2 facts giving rise to a reasonable inference that she was paid less than that. Disregarding 3 Amador-Stewart’s own conclusion about the illegality or substandard rate of her hourly 4 pay rate, this allegation is merely consistent with liability, but nothing more. If her hourly 5 rate of pay was $7.25 or more, she was not paid less than the minimum wage for the first 6 40 hours of work each week. 7 Snooze suggests that Amador-Stewart is attempting to assert a “gap time” claim 8 that is not cognizable under the FLSA, and cites Perez, 75 F. Supp. 3d at 1188–90 in 9 support of this. Amador-Stewart’s opposition does not address this. The Court accepts 10 this non-opposition as her concession that she cannot bring such an argument. See 11 Goldstein v. Exxon Mobil Corp., 2018 WL 5849930, slip op. at *2 (C.D. Cal., Aug. 13, 12 2018) (deeming plaintiffs’ failure to address an argument in their opposition a waiver of 13 that argument). 14 Because, as discussed below, Amador-Stewart has not pled any overtime claim, 15 she has also not pled a claim for failure to pay minimum overtime wages. She has not 16 met the pleading standard for the FLSA minimum wage claim since she has not plead 17 facts showing the plausibility of these claims. See Landers, 771 F 3d. at 645–46. 18 FLSA Overtime Wage Claim 19 The FAC alleges broadly that Snooze had a general policy of consistently requiring 20 or encouraging workers to work overtime, for which they were not properly compensated. 21 It fails to identify any time when this happened, however, or even if it ever happened to 22 / / / 23 24 2 S n o o z e p o i n t s o u t t h a t i n C alifornia, where Amador-Stewart worked, the minimum wage 25 was $10.50 in 2017 and $11.00 in 2018. If Snooze was in compliance with state minimum wage law, it was ipso facto in compliance with federal minimum wage law. In order for 26 Snooze to be violating FLSA minimum wage requirements, it would also have to be violating California’s minimum wage requirements by quite a large margin. This renders 27 the FLSA minimum wage claim somewhat less more implausible than it already is. 28 1 her.3 Under Landers, “a plaintiff asserting a claim to overtime payments must allege that 2 she worked more than forty hours in a given workweek without being compensated for 3 the overtime hours worked during that workweek.” 771 F.3d at 644–45 (emphasis 4 added). One way to meet this standard would be to identify a week when Amador-Stewart 5 was required to work more than forty hours and not properly compensated, but the FAC 6 does not do this. Nor does it reasonably suggest there was any given week, even if 7 unidentified, when she was not properly compensated. Rather, it suggests only that she 8 might have worked overtime without being properly compensated. 9 Amador-Stewart seeks to distinguish this claim from the claim Landers found 10 insufficient, by pointing out that she has alleged a time period for the overtime. But the 11 time period she cites is the class period, i.e., “from July 9, 2014 through the date of trial 12 or settlement . . . .” (FAC, ¶ 5.) This is not enough. 13 California Overtime Claims 14 The FAC alleges that Snooze misclassified both Amador-Stewart and other 15 employees as exempt from overtime pay requirements. (FAC, ¶ 54.) It does not explain 16 what form this misclassification took—for example, whether Snooze formally said they 17 were exempt, or whether it merely failed to pay them overtime. It goes on to allege that 18 they were not compensated for “all of the overtime wages earned,” (id., ¶ 56), which 19 seems to mean they were paid some but not all of the overtime they earned. If they were 20 classified as exempt, it is unclear why Snooze would have paid them any overtime. 21 This claim depends on the same allegations as the FLSA claims, with a few 22 additions. Because the additional allegations do not adequately shore up the claim, it 23 must also be dismissed. 24 / / / 25 / / / 26 3 Concerning Amador-Stewart’s working conditions, the FAC only alleges that she was 27 frequently permitted to and did work shifts lasting around four hours without being given 28 rest periods and meal breaks. (FAC, ¶ 19.) 1 California Minimum Wage Claim 2 This claim, as pled, adds no facts, and relies on wholly conclusory allegations that 3 the wages Snooze paid its workers were less than the wages required by law for all their 4 compensable work. 5 Leaving aside the class claims, Amador-Stewart at least needs to plead facts 6 supporting her conclusion that she was paid less than permitted under the law, and that 7 what she was doing amounted to compensable hours worked.4 Given that California’s 8 minimum wage was $10.50 in 2017 and $11.00 in 2018, Amador-Stewart should know 9 whether she was paid that much, or whether she was paid significantly more or less than 10 that. Bearing in mind that she is also claiming that she was paid less than the federal 11 minimum wage of $7.25, and assuming that claim is made in good faith, she should know 12 that she was paid significantly less than $10.50 or $11.00 hourly, and should be able to 13 allege it. Merely alleging that her hourly pay rate was substandard or illegal, without more, 14 does not meet the pleading standard. 15 California Meal and Rest Period Claims 16 The FAC’s only allegations that Amador-Stewart was denied mandatory meal and 17 rest periods are found in paragraph 19 and repeated in paragraph 76, where she says 18 she was frequently permitted to work, and did work, “shifts exceeding four hours or a 19 major fraction thereof (at least three and one-half hours) without being afforded net ten- 20 minute rest periods and without being provided mandatory meal periods.” She also 21 alleges that Snooze did not compensate other employees for “missed meal and/or rest 22 periods.” (FAC, ¶ 78.) These allegations merely recite or paraphrase statutory language, 23 and rest on legal conclusions (such as what amounts to a “net ten-minute” rest period or 24 a “mandatory” meal period) with no facts to explain or support what they mean. Other 25 4 As noted above, Snooze argues and Amador-Stewart does not dispute, that she was 26 attempting to bring an impermissible “gap time” claim under the FLSA. In the absence of any alleged facts about what she thinks amounts, under California law, to compensable 27 hours worked, there is no way to know whether her legal conclusions about 28 compensability are well-founded. 1 federal courts in California have treated such allegations as conclusory. See Ritenour v. 2 Carrington Mortg. Servs LLC, 228 F. Supp. 3d 1025, 1033 (C.D. Cal. 2017); Jeske v. 3 Maxim Healthcare Servs., Inc., 2012 WL 78242, at *5–6 (E.D. Cal., 2012). The Court 4 finds these allegations similarly conclusory. 5 Other California Claims 6 Amador-Stewart’s sixth through ninth causes of action are derivative of the first 7 five claims. Until she can adequately plead at least one of the first five claims, her sixth 8 through ninth claims must also be dismissed. 9 Class Allegations 10 Because Amador-Stewart has not successfully pled any claims of her own, she 11 cannot bring claims on behalf of a putative class, and the class claims will also be 12 dismissed. Snooze, however, asks that the claims also be dismissed because they do 13 not meet pleading standards. Because the FAC is lacking in factual detail, however, the 14 Court believes the issue of class claims should be deferred, at least until the bases for 15 Amador-Stewart’s own claims are clear. See Gen. Tel. Co. of Southwest, 457 U.S. at 16 160. 17 That being said, if Amador-Stewart amends her complaint, she should apply the 18 principles this order has mentioned to the class claims as well. For example, she should 19 plead facts plausibly showing that Snooze has and enforces company-wide policies that 20 result in workers being underpaid. The facts should show that these claims are plausible, 21 not merely possible. Because she has worked in a restaurant alongside the workers she 22 is seeking to represent, she should be able to allege facts showing that Snooze’s policies 23 required other workers to work unpaid overtime, or denied them minimum wages and 24 meal and rest breaks. She should also allege facts showing that this was a company- 25 wide policy, as opposed to policy applied solely in the restaurant where she worked. 26 Conclusion and Order 27 The motion to dismiss is GRANTED IN PART. The FAC is DISMISSED WITHOUT 28 PREJUDICE, but WITH LEAVE TO AMEND. No later than October 21, 2019, Amador- 1 Stewart may file a second amended complaint that corrects all the defects this order has 2 identified. If she fails to file an amended complaint within the time permitted, this action 3 may be dismissed for failure to prosecute. 4 If Amador-Stewart cannot successfully amend or does not wish to, she should file 5 a notice so stating and this action will be dismissed without prejudice but without leave to 6 amend. Or, the parties may file a joint motion of dismissal. 7 IT IS SO ORDERED.

9 Dated: September 20, 2019 10 HONORABLE LARRY ALAN BURNS Chief United States District Judge 11

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