1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 STEVEN THOMAS ATTEBERY, Case No. 1:22-CV-1352 JLT BAM individually and on behalf of himself and 12 all others similarly situated, ORDER GRANTING IN PART DEFENDANT’S MOTION TO DISMISS AND 13 Plaintiff, DIRECTING THE PARTIES TO FILE A JOINT STATEMENT REGARDING THE 14 v. STATE COURT PROCEEDINGS 15 US FOODS, INC. d/b/a/ US (Doc. 5) FOODSERVICE, INC., a Delaware 16 corporation; and DOES 1 through 50, inclusive, 17 Defendants. 18 19 Steven Thomas Attebery asserts US Foods violated California’s wage and hour laws and 20 Unfair Competition Law, and states claims against the company on behalf of himself and a class 21 of similarly situated employees. (See generally Doc. 1, Exh. A.) Defendant moves to dismiss 22 and/or stay the action, arguing: (1) Plaintiff’s fifth claim for timely paid wages pursuant to 23 California Labor Code section 204 fails to state a claim under Federal Rule of Civil Procedure 24 12(b)(6); (2) a stay is warranted under the doctrine set forth in Colorado River Water 25 Conservation District v. United States, 424 U.S. 800 (1976); and (3) alternatively, under Landis, 26 this Court should refrain from hearing the case. Plaintiff did not oppose the motion.1 For the 27
28 1 In lieu of an opposition to the motion to dismiss, Plaintiff filed a motion to remand (Doc. 7), in violation of Eastern 1 following reasons, the Court grants the motion in part and declines to reach the remainder of the 2 motion. Instead, the Court directs the parties to file a joint status report as discussed below. 3 I. BACKGROUND 4 A. This Action: Attebery v. US Foods, Inc. 5 Plaintiff brought this class action against his former employer, US Foods, by filing a 6 complaint in Fresno Superior Court on September 16, 2022. (Doc. 1 at 20.) He seeks to state 7 claims on behalf of a class defined as: “All employees who are or were employed by [US Foods] 8 in the state of California as hourly non-exempt employees within four (4) years prior to the date 9 this lawsuit is filed . . . until resolution of this lawsuit.” (Id. at 25, ¶ 22.) 10 Plaintiff was employed by US Foods as a “Truck Driver/Delivery Driver,” which was 11 classified as a non-exempt, hourly position. (Doc. 1 at 23, ¶ 12.) Plaintiff’s duties included 12 “delivering food and food products to different locations via truck.” (Id.) He was employed by 13 US Foods from about January 2014 through September 16, 2021. (Id.) 14 Plaintiff contends that during the relevant liability period, US Foods “implemented 15 policies and practices which resulted in Plaintiff and Non Exempt Employees not receiving 16 minimum wage for all hours worked.” (Doc. 1 at 23, ¶ 13.) Plaintiff alleges:
17 [D]uring the COVID-19 pandemic beginning in March 2020, Plaintiff and Class Members were required to undergo COVID-19 18 screenings when beginning a shift at certain locations. Furthermore, Plaintiff was required to move trucks, hook up trailers, and move 19 equipment prior to clocking in for his shift, working often up to thirty (30) minutes off the clock prior to the start of his shift. 20 Plaintiff and Class Members were not compensated for this off-the- clock time spent working and under Defendant’s control. 21 22 (Id.) In addition, Plaintiff asserts he “was regularly required to use his personal cell phone for 23 work-related purposes off the clock,” including approximately 2.5 hours of uncompensated time 24 spent on his cell phone with the transportation manager. (Id.) 25 According to Plaintiff, “due to the work load requirements and time constraints imposed 26 by Defendant during every shift,” he and class members were required to work more than five 27 hours without a minimum, uninterrupted thirty (30) minute meal period.” (Doc. 1 at 23–24, 28 ¶¶ 14–15.) He contends that he and other non-exempt employees “rarely, if ever, received an 1 uninterrupted . . . meal break when required.” (Id. at 24, ¶ 14.) He asserts they worked shifts up 2 to 13 hours “and were not provided a second meal break due to the demands of the job.” (Id., 3 ¶ 15.) Plaintiff alleges he and the class members were not compensated an “hour of pay at their 4 regular rate of compensation for each workday that a compliant meal period was not provided, in 5 violation of California labor laws, regulations and IWC Wage Order.” (Id., ¶¶ 14, 15.) 6 In addition, Plaintiff alleges that “[he] and Class Members were frequently required to 7 work without being permitted or authorized a minimum ten . . . minute rest period for every four 8 hours or major fraction thereof,” which he also attributes “to the workload requirements and time 9 constraints imposed by Defendant.” (Doc. 1 at 24, ¶ 16.) Plaintiff asserts he “rarely, if ever, 10 received any rest breaks due to the job demands and shortage of staff.” (Id.) Rather, Plaintiff 11 alleges that he “was required to drive and timely make deliveries which made taking a ten-minute 12 break during his shift extremely difficult.” (Id.) He contends Defendant did not pay 13 compensation to class members “for each workday that a rest period was not provided . . .” (Id.) 14 Plaintiff asserts US Foods also “failed to lawfully reimburse Plaintiff and Non-Exempt 15 employees for all business expenses necessarily incurred by Plaintiff and Non-Exempt 16 Employees.” (Doc. 1 at 24, ¶ 17.) Plaintiff alleges he “was required to regularly and frequently 17 use[d] his cell phone for work-related purposes in order to communicate with colleagues, 18 managers, and customers,” without compensation. (Id. at 24–25, ¶ 17.) 19 According to Plaintiff, US Foods “failed to maintain accurate itemized records reflecting 20 total hours worked and have failed to provide Non Exempt Employees with accurate, itemized 21 wage statements reflecting total hours worked and appropriate rates of pay for those hours 22 worked.” (Doc. 1 at 25, ¶ 18.) He asserts IWC Wage Orders require maintaining records 23 showing “when the employee begins and ends each work period, meal periods, split shift intervals 24 and total daily hours worked in an itemized wage statement, and must show all deductions and 25 reimbursements from payment of wages, and accurately report total hours worked by Plaintiff and 26 the members of the proposed class.” (Id. at 33–34, ¶ 64.) Plaintiff contends Defendant did not 27 keep the mandated records, and consequently he and class members were “unaware of the full 28 compensation to which they were entitled.” (Id. at 34, ¶¶ 64–65.) 1 Further, Plaintiff contends Defendant failed to pay “wages when they were due and 2 payable,” because he and the class members were “not paid all lawful wages owed or provide 3 with lawful meal period[s] or rest period[s] . . .” (Doc. 1 at 32, ¶ 52.) Plaintiff also alleges that 4 the day of his termination, he “did not receive his final paycheck and was not compensated for 5 waiting to receive his final paycheck.” (Id. at 25, ¶ 19.) He contends “[m]ore than 30 days have 6 passed since Plaintiff and affected Members have left Defendants’ employ,” and they did not 7 receive “payment pursuant to Labor Code § 203.” (Id. at 33, ¶ 61.) 8 Plaintiff seeks to hold Defendant liable failure to:
9 • Pay lawful wages including overtime in violation of Cal. Lab. Code §§ 510, 1194, and 11972; 10 • Provide lawful meal periods (or compensation in lieu of) in violation of Lab. Code 11 §§ 226.7, 512 and Industrial Wage Commission Wage Orders;
12 • Provide rest periods (or compensation in lieu thereof) in violation of Lab. Code § 226.7 and IWC Wage Orders; 13 • Reimburse class members’ employee expenses in violation of Lab. Code § 2802; 14 • Pay timely wages in violation of Lab.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 STEVEN THOMAS ATTEBERY, Case No. 1:22-CV-1352 JLT BAM individually and on behalf of himself and 12 all others similarly situated, ORDER GRANTING IN PART DEFENDANT’S MOTION TO DISMISS AND 13 Plaintiff, DIRECTING THE PARTIES TO FILE A JOINT STATEMENT REGARDING THE 14 v. STATE COURT PROCEEDINGS 15 US FOODS, INC. d/b/a/ US (Doc. 5) FOODSERVICE, INC., a Delaware 16 corporation; and DOES 1 through 50, inclusive, 17 Defendants. 18 19 Steven Thomas Attebery asserts US Foods violated California’s wage and hour laws and 20 Unfair Competition Law, and states claims against the company on behalf of himself and a class 21 of similarly situated employees. (See generally Doc. 1, Exh. A.) Defendant moves to dismiss 22 and/or stay the action, arguing: (1) Plaintiff’s fifth claim for timely paid wages pursuant to 23 California Labor Code section 204 fails to state a claim under Federal Rule of Civil Procedure 24 12(b)(6); (2) a stay is warranted under the doctrine set forth in Colorado River Water 25 Conservation District v. United States, 424 U.S. 800 (1976); and (3) alternatively, under Landis, 26 this Court should refrain from hearing the case. Plaintiff did not oppose the motion.1 For the 27
28 1 In lieu of an opposition to the motion to dismiss, Plaintiff filed a motion to remand (Doc. 7), in violation of Eastern 1 following reasons, the Court grants the motion in part and declines to reach the remainder of the 2 motion. Instead, the Court directs the parties to file a joint status report as discussed below. 3 I. BACKGROUND 4 A. This Action: Attebery v. US Foods, Inc. 5 Plaintiff brought this class action against his former employer, US Foods, by filing a 6 complaint in Fresno Superior Court on September 16, 2022. (Doc. 1 at 20.) He seeks to state 7 claims on behalf of a class defined as: “All employees who are or were employed by [US Foods] 8 in the state of California as hourly non-exempt employees within four (4) years prior to the date 9 this lawsuit is filed . . . until resolution of this lawsuit.” (Id. at 25, ¶ 22.) 10 Plaintiff was employed by US Foods as a “Truck Driver/Delivery Driver,” which was 11 classified as a non-exempt, hourly position. (Doc. 1 at 23, ¶ 12.) Plaintiff’s duties included 12 “delivering food and food products to different locations via truck.” (Id.) He was employed by 13 US Foods from about January 2014 through September 16, 2021. (Id.) 14 Plaintiff contends that during the relevant liability period, US Foods “implemented 15 policies and practices which resulted in Plaintiff and Non Exempt Employees not receiving 16 minimum wage for all hours worked.” (Doc. 1 at 23, ¶ 13.) Plaintiff alleges:
17 [D]uring the COVID-19 pandemic beginning in March 2020, Plaintiff and Class Members were required to undergo COVID-19 18 screenings when beginning a shift at certain locations. Furthermore, Plaintiff was required to move trucks, hook up trailers, and move 19 equipment prior to clocking in for his shift, working often up to thirty (30) minutes off the clock prior to the start of his shift. 20 Plaintiff and Class Members were not compensated for this off-the- clock time spent working and under Defendant’s control. 21 22 (Id.) In addition, Plaintiff asserts he “was regularly required to use his personal cell phone for 23 work-related purposes off the clock,” including approximately 2.5 hours of uncompensated time 24 spent on his cell phone with the transportation manager. (Id.) 25 According to Plaintiff, “due to the work load requirements and time constraints imposed 26 by Defendant during every shift,” he and class members were required to work more than five 27 hours without a minimum, uninterrupted thirty (30) minute meal period.” (Doc. 1 at 23–24, 28 ¶¶ 14–15.) He contends that he and other non-exempt employees “rarely, if ever, received an 1 uninterrupted . . . meal break when required.” (Id. at 24, ¶ 14.) He asserts they worked shifts up 2 to 13 hours “and were not provided a second meal break due to the demands of the job.” (Id., 3 ¶ 15.) Plaintiff alleges he and the class members were not compensated an “hour of pay at their 4 regular rate of compensation for each workday that a compliant meal period was not provided, in 5 violation of California labor laws, regulations and IWC Wage Order.” (Id., ¶¶ 14, 15.) 6 In addition, Plaintiff alleges that “[he] and Class Members were frequently required to 7 work without being permitted or authorized a minimum ten . . . minute rest period for every four 8 hours or major fraction thereof,” which he also attributes “to the workload requirements and time 9 constraints imposed by Defendant.” (Doc. 1 at 24, ¶ 16.) Plaintiff asserts he “rarely, if ever, 10 received any rest breaks due to the job demands and shortage of staff.” (Id.) Rather, Plaintiff 11 alleges that he “was required to drive and timely make deliveries which made taking a ten-minute 12 break during his shift extremely difficult.” (Id.) He contends Defendant did not pay 13 compensation to class members “for each workday that a rest period was not provided . . .” (Id.) 14 Plaintiff asserts US Foods also “failed to lawfully reimburse Plaintiff and Non-Exempt 15 employees for all business expenses necessarily incurred by Plaintiff and Non-Exempt 16 Employees.” (Doc. 1 at 24, ¶ 17.) Plaintiff alleges he “was required to regularly and frequently 17 use[d] his cell phone for work-related purposes in order to communicate with colleagues, 18 managers, and customers,” without compensation. (Id. at 24–25, ¶ 17.) 19 According to Plaintiff, US Foods “failed to maintain accurate itemized records reflecting 20 total hours worked and have failed to provide Non Exempt Employees with accurate, itemized 21 wage statements reflecting total hours worked and appropriate rates of pay for those hours 22 worked.” (Doc. 1 at 25, ¶ 18.) He asserts IWC Wage Orders require maintaining records 23 showing “when the employee begins and ends each work period, meal periods, split shift intervals 24 and total daily hours worked in an itemized wage statement, and must show all deductions and 25 reimbursements from payment of wages, and accurately report total hours worked by Plaintiff and 26 the members of the proposed class.” (Id. at 33–34, ¶ 64.) Plaintiff contends Defendant did not 27 keep the mandated records, and consequently he and class members were “unaware of the full 28 compensation to which they were entitled.” (Id. at 34, ¶¶ 64–65.) 1 Further, Plaintiff contends Defendant failed to pay “wages when they were due and 2 payable,” because he and the class members were “not paid all lawful wages owed or provide 3 with lawful meal period[s] or rest period[s] . . .” (Doc. 1 at 32, ¶ 52.) Plaintiff also alleges that 4 the day of his termination, he “did not receive his final paycheck and was not compensated for 5 waiting to receive his final paycheck.” (Id. at 25, ¶ 19.) He contends “[m]ore than 30 days have 6 passed since Plaintiff and affected Members have left Defendants’ employ,” and they did not 7 receive “payment pursuant to Labor Code § 203.” (Id. at 33, ¶ 61.) 8 Plaintiff seeks to hold Defendant liable failure to:
9 • Pay lawful wages including overtime in violation of Cal. Lab. Code §§ 510, 1194, and 11972; 10 • Provide lawful meal periods (or compensation in lieu of) in violation of Lab. Code 11 §§ 226.7, 512 and Industrial Wage Commission Wage Orders;
12 • Provide rest periods (or compensation in lieu thereof) in violation of Lab. Code § 226.7 and IWC Wage Orders; 13 • Reimburse class members’ employee expenses in violation of Lab. Code § 2802; 14 • Pay timely wages in violation of Lab. Code § 204; 15 • Pay termination wages in violation of Lab. Code §§ 201–203; 16 • Comply with itemized employee wage statement provisions in violation of Lab. 17 Code §§ 226(a)3 and IWC Wage Orders; and
18 • Comply with Unfair Competition Law in violation of Cal. Bus. & Prof. Code §§ 17200–17208. 19 20 (Doc. 1 at 29–35.) The matter was removed to federal court, and the Court denied Plaintiff’s 21 motion to remand. (Doc. 17.) 22 2 In the heading of the First Cause of Action, Plaintiff indicates the claim is brought pursuant to Section 1199. 23 (Doc. 1 at 29.) The allegations of the claim, however, discuss Section 1197. (See id.) Section 1199 provides the punishment for violations of the Labor Code: “Every employer . . . is guilty of a misdemeanor . . . who does any of 24 the following [Labor Code violations] . . .” See Cal. Lab. Code § 1199. Section 1197 specifies that “payment of a lower wage than the minimum wage is unlawful.” See id. at § 1197. Despite the heading, it appears that Plaintiff 25 seeks to state a claim for violation of Section 1197.
26 3 In the heading of the Seventh Cause of Action, Plaintiff indicates the claim is brought pursuant to Section 226(b). (Doc. 1 at 35.) However, the allegations of the complaint focus upon Section 226(a). (See id.) Section 226(a) 27 governs itemized wage statements while Section 226(b) relates to an employer’s obligation to “afford current and former employees the right to inspect or receive a copy of records pertaining to their employment, upon reasonable 28 request to the employer.” See Cal. Lab. Code §§ 226(a), (b). Thus, it appears Plaintiff seeks to state a claim for 1 B. Similar Actions4 2 1. Osorio action 3 Felipe Osorio filed a wage-and-hour putative class and PAGA representative action against 4 US Foods on December 8, 2020, in Los Angeles Superior Court, Case No. 20STCV46858. (Doc. 5 5-3 at 4.) Osorio alleged failure to compensate all hours worked, failure to pay minimum wage, 6 overtime, and double time, failure to provide accurate itemized wage statements, and waiting time 7 penalties— all under California Labor Code—and an Unfair Competition Law claim under 8 California Business and Professions Code. (See generally id. at 4–18.) 9 After the parties reached a settlement, the court certified a settlement class that included 10 “current and former California non-exempt, driver employees based out of the Corona facility 11 who completed at least one wellness check in California at any time between April 15, 2020 12 through June 28, 2021.” (Case No. 20STCV46858, “Judgment”, filed May 3, 2023.) In addition, 13 the settlement class included non-exempt, non-driver employees based out of the US Foods 14 facilities in Corona, Fontana, La Mirada, Livermore, Hawthorne, Tracy, and Vista facilities who 15 completed at least one COVID-19 temperature check during specified time periods. (Id.) The 16 court noted the settlement class did not include subclasses, “cover[ed] the respective time periods 17 during which Defendant’s California locations conducted COVID-19 related temperature checks, 18 which [were] the subject of the Parties’ dispute.” (Id.) The court granted final approval of the 19 settlement terms and entered judgment on May 3, 2023. (Id.) 20 4 Defendant requests the Court takes judicial notice of the Complaints in Osorio and Hawkins. (Doc. 5-3.) A court 21 may take judicial notice of “a fact that is not subject to reasonable dispute” because it is generally known or “can be accurately and readily determined” from indisputably reliable sources. Fed. R. Evid. 201. “[C]ourts may take 22 judicial notice of documents filed in other court proceedings” or on its docket. NuCal Foods, Inc. v. Quality Egg LLC, 887 F. Supp. 2d 977, 984-85 (E.D. Cal. 2012); see also Schulze v. FBI, 2010 WL 2902518, at *1 (E.D. Cal. 23 July 22, 2010) (quoting U.S. v. Black, 482 F.3d 1035, 1041 (9th Cir. 2007)) (“A federal court may ‘take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct 24 relation to matters at issue.’”). However, facts contained within those filings that are subject to reasonable dispute do not qualify for judicial notice. Fed. R. Evid. 201; U.S. v. Corinthian Colls., 655 F.3d 984, 999 (9th Cir. 2011). 25 Accordingly, the Court GRANTS Defendants’ request for judicial notice of the existence of the state class action complaints but does not take as true the facts stated therein. The Court also takes judicial notice of the Osorio 26 judgment filed on May 3, 2023, and the Hawkins “Joint Stipulation re Request for Dismissal without Prejudice and Order” dated January 29, 2014; “Joint Stipulation and Order to Permit Filing of First Amended Complaint” dated 27 January 29, 2014; and the filing of the First Amended Complaint occurring on February 16, 2014. See NuCal Foods, Inc., 887 F. Supp. 2d at 984-85; see also Hott v. City of San Jose, 92 F. Supp. 2d 996, 998 (N.D. Cal. 2000) 28 (taking judicial notice of state court filings). 1 2. Hawkins action 2 Carrell Hawkins filed his putative wage and hour class action on April 26, 2021, in 3 Orange County Superior Court, Case No. 30-2021-01197275-CU-OE-CXC. (Doc. 5-3 at 20.) 4 Hawkins alleged claims against US Foods, Catalyst Forward Group, and ShiftableHR for wage, 5 meal, and rest period violations; failure to maintain required records; unfair business practices; 6 and failure to provide accurate wage statements. (Id. at 20–35.) Pursuant to the stipulation of the 7 parties, the court dismissed ShiftableHR from the action without prejudice. (Register of Action 8 [“ROA”] No. 85.) Hawkins and the defendants reported they engaged in settlement discussions, 9 after which “a settlement in principal was reached among Plaintiff, catalyst, and US Foods, with 10 continued settlement negotiations facilitated by the mediator.” (ROA No. 88.) As part of the 11 settlement, and in anticipation of seeking approval of the terms, Hawkins filed a First Amended 12 Complaint on February 16, 2024. (See ROA Nos. 88, 94.) 13 II. LEGAL STANDARD 14 A. Motion to Dismiss under Federal Rule 12(b)(6) 15 A Rule 12(b)(6) motion “tests the legal sufficiency of a claim.” Navarro v. Block, 250 16 F.3d 729, 732 (9th Cir. 2001). Dismissal of a claim under Rule 12(b)(6) is appropriate when “the 17 complaint lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory.” 18 Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). Thus, under Rule 19 12(b)(6), “review is limited to the complaint alone.” Cervantes v. City of San Diego, 5 F.3d 1273, 20 1274 (9th Cir. 1993). The Supreme Court explained: “To survive a motion to dismiss, a complaint 21 must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible 22 on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 23 550 U.S. 544, 570 (2007)). The Supreme Court explained, 24 A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the 25 defendant is liable for the misconduct alleged. The plausibility standard is not akin to a “probability requirement,” but it asks for 26 more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are “merely consistent with” a 27 defendant’s liability, it “stops short of the line between possibility and plausibility of ‘entitlement to relief.’” 28 1 Iqbal, 556 U.S. at 678 (internal citations omitted). “The issue is not whether a plaintiff will 2 ultimately prevail, but whether the claimant is entitled to offer evidence to support the claims. 3 Indeed, it may appear on the face of the pleadings that a recovery is very remote and unlikely but 4 that is not the test.” Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). The Court “will dismiss any 5 claim that, even when construed in the light most favorable to plaintiff, fails to plead sufficiently 6 all required elements of a cause of action.” Student Loan Marketing Assoc. v. Hanes, 181 F.R.D. 7 629, 634 (S.D. Cal. 1998). To the extent pleading deficiencies can be cured by the plaintiff 8 alleging additional facts, leave to amend should be granted. Cook, Perkiss & Liehe, Inc. v. N. 9 Cal. Collection Serv., 911 F.2d 242, 247 (9th Cir. 1990) (citations omitted). 10 B. Colorado River Doctrine 11 The Ninth Circuit clearly articulated how to apply the Colorado River Doctrine in United 12 States v. State Water Res. Control Bd., 988 F.3d 1194, 1206 (9th Cir. 2021), as follows: 13 Pursuant to Colorado River, in rare cases, “there are principles unrelated to considerations of proper constitutional adjudication and 14 regard for federal-state relations which govern in situations involving the contemporaneous exercise of concurrent jurisdictions, either by 15 federal courts or by state and federal courts.” Colo. River, 424 U.S. at 817. In the interest of “[w]ise judicial administration, giving 16 regard to conservation of judicial resources and comprehensive disposition of litigation,” a district court can dismiss or stay[ ] “a 17 federal suit due to the presence of a concurrent state proceeding.” Id. at 817–18. Because of “the virtually unflagging obligation of the 18 federal courts to exercise the jurisdiction given [to] them,” id. at 817, “[o]nly the clearest of justifications will warrant [a] dismissal” or 19 stay, id. at 819. The instances in which a court can stay an action pursuant to Colorado River “are considerably more limited than the 20 circumstances appropriate for abstention. The former circumstances, though exceptional, do nevertheless exist.” Id. at 818.The court’s 21 “task in [such] cases ... is not to find some substantial reason for the exercise of federal jurisdiction by the district court; rather, the task is 22 to ascertain whether there exist ‘exceptional’ circumstances, the ‘clearest of justifications,’ that can suffice under Colorado River to 23 justify the surrender of that jurisdiction.” Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 25 (1983). “If there is 24 any substantial doubt as to” whether “the parallel state-court litigation will be an adequate vehicle for the complete and prompt 25 resolution of the issues between the parties ... it would be a serious abuse of discretion to grant the stay or dismissal at all.” Id. at 28. 26 Building on Supreme Court precedent, we have listed eight factors 27 to be considered in determining whether a Colorado River stay is appropriate: 28 1 (1) which court first assumed jurisdiction over any property at stake; (2) the inconvenience of the federal forum; (3) the desire to avoid 2 piecemeal litigation; (4) the order in which the forums obtained jurisdiction; (5) whether federal law or state law provides the rule of 3 decision on the merits; (6) whether the state court proceedings can adequately protect the rights of the federal litigants; (7) the desire to 4 avoid forum shopping; and (8) whether the state court proceedings will resolve all issues before the federal court. R.R. St. & Co. Inc. v. 5 Transp. Ins. Co., 656 F.3d 966, 978-79 (9th Cir. 2011) (citation omitted). The factors are not a “mechanical checklist.” Moses H. 6 Cone, 460 U.S. at 16. We apply the factors “in a pragmatic, flexible manner with a view to the realities of the case at hand.” Id. at 21. 7 “The weight to be given to any one factor may vary greatly from case to case, depending on the particular setting of the case.” Id. at 16. 8 “Some factors may not apply in some cases,” Montanore Minerals Corp. v. Bakie, 867 F.3d 1160, 1166 (9th Cir. 2017), as amended on 9 denial of reh'g and reh'g en banc (Oct. 18, 2017), and, in some cases, a single factor may decide whether a stay is permissible, see, e.g., 10 Intel Corp. v. Advanced Micro Devices, Inc., 12 F.3d 908, 913 (9th Cir. 1993); Moses H. Cone, 460 U.S. at 19 (“[T]he consideration that 11 was paramount in Colorado River itself [was] the danger of piecemeal litigation.”). 12 13 State Water, 988 F.3d at 1202–03 (emphases in original) (internal footnote omitted). 14 C. Landis Stay 15 “The power to stay proceedings is incidental to the power inherent in every court to 16 control the disposition of the causes on its docket with economy of time and effort for itself, for 17 counsel, and for litigants.” Landis v. N. Am. Co., 299 U.S. 248, 254 (1936). A trial court may 18 “find it is efficient for its own docket and the fairest course for the parties to enter a stay of an 19 action before it, pending resolution of independent proceedings which bear upon the case.” Levya 20 v. Certified Grocers of Cal., Ltd., 593 F.2d 857, 863 (9th Cir. 1979). In deciding whether to grant 21 a stay, a court weighs several factors: the potential for damage that may result from granting a 22 stay, the hardship a party may suffer in being required to litigate the case, and whether, because 23 of the stay, justice is furthered through simplifying or complicating the issues, proof, and 24 questions of law. CMAX, Inc. v. Hall, 300 F.2d 265, 268 (9th Cir. 1962). 25 III. DISCUSSION 26 A. Failure to Timely Pay Wages 27 In Plaintiff’s fifth cause of action, he notes that “Labor Code § requires that all wages are 28 due and payable twice in each calendar month.” (Doc. 1 at 32, ¶ 52.) Plaintiff contends he was 1 not timely paid all wages due and payable because “he was not paid all lawful wages owed or 2 provided with lawful meal period[s] or rest period[s].” (Id.) Thus, Plaintiff contends he and class 3 members are entitled to penalties under Labor Code § 210. (Id., ¶ 53.) Plaintiff does not provide, 4 however, sufficient factual allegations to support this legal theory, as there are no allegations that 5 he was not paid every two weeks as required by Section 204. See Iqbal, 556 U.S. at 678; see also 6 Dutra v. J.R. Simplot Co., 2023 WL 113846, at *5 (E.D. Cal. Jan. 5, 2023) (“Section 204 requires 7 the payment of wages in a timely manner; it does not provide a right to wages”) (citing Johnson v. 8 Hewlett-Packard Co., 809 F. Supp. 2d 1114, 1136 (N.D. Cal. Aug. 12, 2011), aff’d 546 Fed. 9 App’x 612 (9th Cir. Sept. 5, 2013). 10 Moreover, a violation of Section 204 “does not grant employees a private right of action 11 against employers who violate section 204.” Young v. ABM Sec. Servs., 905 F.2d 1541, at *3 (9th 12 Cir.1990); see also Slay v. CVS Caremark Corp., 2015 WL 2081642, at *8 (E.D. Cal. May 4, 13 2015) (“Section 204 does not provide a private right of action”); Thistlewaite v. United Parcel 14 Service, 2022 WL 17578868, at *5 (N.D. Cal. Dec. 7, 2022) (“courts regularly hold that there is 15 no private right of action under § 204”). Because Plaintiff does not have an individual, private 16 right of action for a violation of Section 204, the motion to dismiss the claim is granted, without 17 leave to amend. 18 B. Colorado River Doctrine and Landis Stay 19 The Court next evaluates whether the remainder of the case may be dismissed or stayed 20 pursuant to the Colorado River balancing test. As noted earlier, final judgment was entered in the 21 Osorio case and settlement is in progress in the Hawkins case. Given that the motion to dismiss 22 is unopposed and the issue of res judicata was not briefed5, the Court declines the reach the issue 23 of whether Colorado River applies. Instead, pursuant to its inherent authority to control its 24 docket, Landis, 299 U.S. at 254, the Court orders the parties to file a joint statement addressing 25 the res judicata effect of Osorio and Hawkins, and whether the remainder of the motion to dismiss 26 should be resolved or held in abeyance. 27
28 5 The Court notes that the failure to brief the issue of res judicata is through no fault of the parties, as the related state 1 CONCLUSION 2 For the reasons set forth above, the Court ORDERS: 3 1. Defendant’s motion to dismiss the fifth cause of action for a violation of California 4 Labor Code § 204 is GRANTED, without leave to amend. 5 2. The question of whether Colorado River applies is HELD IN ABEYANCE. 6 3. Within 14 days of this order, the partis SHALL file a joint status report addressing 7 | G) the res judicata effect of the developments in the related state cases; (ii) whether the Court 8 | should proceed to resolve the pending motion and/or continue to hold it in abeyance; and □□□□□ 9 | whether alternative motions practice will be required. 10 IT IS SO ORDERED. D Dated: _ March 8, 2024 Cerin | Tower TED STATES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10