Bojorquez v. Abercrombie & Fitch, Co.

193 F. Supp. 3d 1117, 2016 U.S. Dist. LEXIS 129108, 2016 WL 3693798
CourtDistrict Court, C.D. California
DecidedJune 16, 2016
DocketCase No. CV 15-9651 JGB (AGRx)
StatusPublished
Cited by8 cases

This text of 193 F. Supp. 3d 1117 (Bojorquez v. Abercrombie & Fitch, Co.) is published on Counsel Stack Legal Research, covering District Court, C.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bojorquez v. Abercrombie & Fitch, Co., 193 F. Supp. 3d 1117, 2016 U.S. Dist. LEXIS 129108, 2016 WL 3693798 (C.D. Cal. 2016).

Opinion

Proceedings: Order: (1) GRANTING Defendants’ Motion to Sever and Dismiss, Motion for Judgment on the Pleadings, and Motion to Dismiss for Improper Venue (Dkt. No. 31); and (2) VACATING the June 20, 2016 Hearing (IN CHAMBERS)

The Honorable JESUS G. BERNAL, UNITED STATES DISTRICT JUDGE

Before the Court is Defendants’ Motion to Sever and Dismiss, Motion for Judg[1121]*1121ment on the Pleadings, and Motion to Dismiss for Improper Venue. (Dkt. No. 31.) The Court finds this matter appropriate for resolution without a hearing. See Fed. R. Civ. P. 78; L.R. 7-15. After consideration of the papers filed in support of and in opposition to the motion, the Court GRANTS the motion. The June 20, 2016 hearing is VACATED.

I. BACKGROUND

Plaintiffs Alma Bojorquez, Jake Val-lante, and Matthew Allan, (collectively, “Plaintiffs”), are current and former employees of Defendants Abercrombie & Fitch Co. and Abercrombie & Fitch Stores, Inc., (collectively, “Defendants” or “Abercrombie”). (See First Amended Complaint (“FAC”) ¶¶ 18-22, Dkt. No. 29.) Abercrombie owns and operates retail stores throughout the United States which sell clothing and accessories primarily to children, teenagers, and young adults. (Id, ¶ 1.) Plaintiffs allege that Abercrombie committed and continues to commit various federal and state wage-and-hour violations because it requires its employees to purchase and wear Abercrombie clothing and footwear with their own funds without reimbursement and because it requires employees to call in before their shifts to find out if they have to go into work without paying employees for this reporting time. (Id. ¶¶ 5, 9,10.)

The FAC alleges twelve causes of action, which are organized into two categories: Clothing and Footwear claims and Reporting Time claims. The first six causes of action are Clothing and Footwear claims. (Id. ¶¶ 79-116.) These claims allege that Abercrombie’s policy of requiring its employees to purchase and wear Abercrom-bie-brand clothing and footwear without reimbursement pushes employee wages below the legal minimum, recaptures paid wages, takes unlawful deductions from wages, and requires the 'unreimbursed purchase of uniforms. (Id. ¶ 5.) Plaintiff Alma Bojorquéz (“Bojorquez”), a resident of California, brings a collective action claim pursuant to the federal Fair Labor Standards Act (“FLSA”) for unpaid minimum wage compensation as a result of Abercrombie’s clothing and footwear policy. (Id. ¶ 11.) Plaintiff Jake Vallante (“Val-lante”), a Massachusetts resident, and Plaintiff Matthew Allan (“Allan”), a Florida resident, bring sepárate putative class action claims pursuant to Massachusetts and Florida law, respectively, for Aber-crombie’s clothing and footwear policy. (Id. ¶¶ 89-116.)

Causes of action 7 through 12 are Reporting Time claims, which allege that Abercrombie’s policy of failing to pay its employees for time spent calling in to their stores before their scheduled start time to receive instruction on whether they are required to work that day violates various provisions of the California Labor Code. (Id. ¶ 10.) All of the Reporting Time claims are putative class action claims brought only by Bojorquez. (Id ¶ 117-156.)

On March 14, 2016, Abercrombie moved to sever and dismiss Bojorquez’s Reporting Time claims, moved for judgment on the pleadings as to Bojorquez’s Clothing and Footwear FLSA claim on the grounds of improper claim splitting, and moved to dismiss Vallante’s and Allan’s claims for improper venue, or alternatively, to transfer venue to the Southern District of Ohio. (“Mot.,” Dkt. No. 31.) Plaintiffs opposed Abercrombie’s motion on April 19, 2016. (“Opp.,” Dkt. No. 34.) On May 9, 2016, Defendants filed a reply memorandum in support of their motion. (“Reply,” Dkt. No. 35.)

II. CLAIM SPLITTING

Defendants move for judgment on the pleadings as to Bojorquez’s Clothing and Footwear claim for improper claim splitting on the grounds that she is already a [1122]*1122class member in another lawsuit against Abercrombie wherein she is asserting the same factual allegations as those in her Clothing and Footwear claim. (Mot. at 12-14.) Plaintiffs oppose. (Opp. at 8-18.)

A. Related Cases

There are currently five actions pending before this Court—including this, one— which allege various wage-and-hour violations, against Abercrombie.1 None of the named Plaintiffs in this action are named Plaintiffs in the other four actions. However, in one of the related cases, Alexander Brown et al. v. Abercrombie & Fitch Co. et al., No. CV 14-1242 JGB (VBKx), (“Brown”), Plaintiff Bojorquez submitted a declaration in support of a motion to certify certain subclasses. (“Bojorquez Decl.,” Dkt. No. 73 at 81 in CV 14-1242 JGB (VBKx).) The motion sought to certify four subclasses of 'plaintiffs, each of which is based on allegations that Abercrombie improperly requires its employees to purchase Abercrombie-brand clothing and footwear without reimbursement. (See “Brown July 16, 2015 Order,” Dkt. No. 108 in CV 14-1242 JGB (VBKx).)

In her declaration, Bojorquez provided detailed information regarding Abercrom-bie’s “Look Policy.” (Bojorquez Decl. ¶¶ 13-26.) The Look Policy requires Aber-crombie employees to wear clothes during their shifts that match Abercrombie’s styles—styles which are set out in the “AAA Style Guide.” (Id. ¶¶ 13-14.) The AAA Style Guide, which is issued every 2-3 months, features clothes that Abercrombie employees are required, to buy for each season. (Id. ¶ 15.) Bojorquez,-stated that she felt compelled to purchase new Aber-crombie clothes every time the AAA Style Guide came out and was reprimanded on at least one occasion for not wearing Aber-crombie-brand jeans. (Id. ¶¶ 18-19.) She declared that she had to use a “large percentage” of her pay to buy Abercrombie-brand clothing “so that [she] can be sure that [she] will continue to be scheduled to work.” (Id. ¶ 24.) Finally, she declared, “I would like this case to be certified as a class action so that I do not have to bear the costs and burden of prosecuting these claims against Abercrombie.” (Id. ¶ 27.)

On July 16, 2015, the Court granted the Brown plaintiffs’ motion to certify the four subclasses, (Brown July 16, 2015 Order at 27.) The Court found the subclasses satisfy the requirements of Federal Rule of Civil Procedure2 23(a) and 23(b)(3). (Id.) These subclasses, which are premised on alleged violations of various sections of the California Labor Code and applicable Wage Orders, include “[a]ll persons who were employed in California as non-exempt, hourly employees” at Abercrombie after September 16, 2009 and who purchased AAA clothing, Abercrombie clothing, or Aber-crombie footwear during their employment after that date. (Id. at 27-28.) The second subclass includes an additional limitation— it includes only those Abercrombie employees that earn no more than minimum wage. (Id. at 28.) The theory behind this subclass is that the allegéd policy of coercing employees earning minimum wage into purchasing AAA clothing resulted in net wages falling below the minimum wage and thus violated California’s minimum wage laws. (Id. at 11.)

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193 F. Supp. 3d 1117, 2016 U.S. Dist. LEXIS 129108, 2016 WL 3693798, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bojorquez-v-abercrombie-fitch-co-cacd-2016.