Genc v. Imperial Pacific International (CNMI), LLC

Opinion

FILED Clerk 1 District Court 5 OCT 14 2022 IN THE UNITED STATES DISTRICT COURT for the Northern Mag 3 FOR THE NORTHERN MARIANA ISLANDS By oon □

4 (Deputy Clerk) OZCAN GENC, HASAN GOKCE, and ) Case No. 1:22-CV-00002 5 || SULEYMAN KOS, on behalf of themselves ) and all others similarly situated, ; Plaintiff ) MEMORANDUM DECISION GRANTING 7 aintiffs, ) MOTION TO DISMISS FIRST AMENDED ) COMPLAINT AND GRANTING g v. ) PLAINTIFFS LEAVE TO AMEND ) 9 || IMPERIAL PACIFIC INTERNATIONAL ) (CNMI), LLC and IMPERIAL PACIFIC ) 10 || INTERNATIONAL HOLDINGS LTD., ; Defendants. ; 12 ) ao) 13 Before the Court is Defendant Imperial Pacific International (CNMI), LLC’s (“IPI” 14 3 motion to dismiss the first amended complaint with prejudice. (Mot. ECF No. 24.) Plaintiffs file

16 || a0 opposition (Opp’n, ECF No. 26), to which IPI filed a reply (Reply, ECF No. 27.) The matte 17 || came for a hearing on October 5, 2022, at which time the Court GRANTED the motion to dismiss 18 || but without prejudice and granted Plaintiffs leave to amend to file a second amended complaint! 19 (Min., ECF No. 32.) The Court memorializes its reasons as follows. 20 I FACTUAL BACKGROUND AND PROCEDURAL HISTORY 21 Previously, the Court granted IPI’s motion to dismiss the original complaint and motion t 22 53 strike Plaintiffs’ class action allegations, but granted Plaintiffs leave to amend the complaint, 24 || including the portion on class action. (Min., ECF No. 17; Tr. at 24, ECF No. 23.) 25 The following facts are taken from the first amended complaint (FAC, ECF No. 20), and 26 || exhibits, which include Plaintiffs’ EEOC charges and right to sue letters. (ECF Nos. 20-1 - 20- 27 28

1 6.)1 Plaintiffs Özcan Genç, Hasan Gökçe, and Süleyman Köş are three men of Turkish national 2 origin and who were, at all relevant times, employees of IPI admitted to the United States under 3 the H-2B temporary foreign worker program as construction workers to build the Imperial Palace 4 casino/hotel resort in Garapan, Saipan. (FAC ¶ 4, ECF No. 20.) All three Plaintiffs started 5 working for IPI in January 2020 on a six-month contract. (Id. ¶¶ 5, 6, 7; ECF Nos. 20-1, 20-3, 6 20-5.) Plaintiff Genç started working as a foreman and leader of the welding and drywall team— 7 with an employment certificate title of “Construction Carpenter” and was paid the base rate of 8 $10.50 per hour plus overtime. (FAC ¶ 5; ECF No. 20-1.) Plaintiff Gökçe started working as a 9 plumber, plumbing foreman, and master of pipe installation—with an employment certificate 10 title of “Plumber” and was paid the base rate of $10.50 per hour plus overtime. (FAC ¶ 6; ECF 11 No. 20-3.) Plaintiff Köş started working as an electrician—with an employment certificate title 12 of “Electrician”—at the base rate of $8.35 per hour and was later promoted to electrical foreman 13 in June 2020 and his wage increased to $10.50 per hour plus overtime. (FAC ¶ 7; ECF No. 20-5.) 14 Plaintiffs bring their Title VII claim on behalf of themselves and as a class action pursuant to 15 Federal Rule of Civil Procedure 23(b)(3), seeking to represent an estimated class of 107 “persons 16 of Turkish national origin who were employed by IPI under the H-2B visa program in 2020 or 17 later.” (FAC ¶¶ 33-35.) 18 Towards the end of June 2020, “when H-2B workers were negotiating with IPI to extend 19 [their] contracts for another six months, one Taiwanese worker showed [Plaintiffs] his 20 paycheck[,]” and that is when Plaintiffs “learned that the Taiwanese were being paid $23 an hour, 21 nearly three times what IPI was paying [Plaintiffs], for the same work.” (Ex. 1A, 2A, 3A, ECF 22 Nos. 20-1, 20-3, 20-5.) Plaintiffs further learned that “the Italians were being paid $30 an hour, 23 also for the same work that [Plaintiffs] were doing.” (Id.) 24 25 26 27 1 Plaintiffs did not attach a copy of Hasan Gökçe’s right to sue letter to their first amended complaint; however, a copy of the letter is in the record at ECF No. 1-2 at 6-7. 1 IPI started to then miss paydays sometime around June 2020, and Plaintiffs filed a lawsuit 2 with this Court in November 2020 pursuant to the Fair Labor Standards Act (FLSA). (Id.) Plaintiffs 3 were subsequently terminated on December 16, 2020. (Id.; FAC ¶¶ 5-7, ECF No. 20.) Around 4 December 2020, Plaintiffs individually/separately filed a charge of discrimination with the Equal 5 Employment Opportunity Commission (EEOC), alleging discrimination on the basis of both 6 national origin and retaliation.2 (FAC ¶¶ 5-7, ECF No. 20; Exs. 1A, 2A, 3A, ECF Nos. 20-1, 20- 7 8 3, 20-5.) 9 After they received their Notice of Right to Sue letters from the EEOC (ECF Nos. 20-2, 10 20-20-6, 1-2), Plaintiffs filed the instant employment discrimination lawsuit against IPI and IPI’s 11 parent company Imperial Pacific International Holdings Ltd. (“IPIH”). Having received leave to 12 amend their complaint after the Court granted IPI’s motion to dismiss, Plaintiffs timely filed their 13 first amended complaint alleging employment discrimination under Title VII of the Civil Rights 14 15 Act of 1964, 42 U.S.C. §§2000e et. seq., and asserting the Court’s original jurisdiction under Title 16 VII. (FAC ¶¶ 1-2, ECF No. 20.) Specifically, Plaintiffs claim that “IPI engaged in a company-wide 17 practice of employment discrimination, both intentional and systemic, on the basis of national 18 origin, against Plaintiffs and a class of similarly situated Turkish employees/former employees as 19 alleged in this Complaint.” (Id. ¶ 1.) As facts to support their pattern or practice discrimination 20 claim, Plaintiffs specifically allege that: 21 15. During the same period when IPI was employing Plaintiffs and 22 members of the class to work on the Imperial Palace casino/hotel 23 resort, IPI also employed other construction workers, including Taiwanese and Italian workers. 24 25 26 27 2 Their retaliation claim formed part of the lawsuit in Genc v. Imperial Pac. Int’l (CNMI) LLC, No. 1:20-cv-00031, albeit under the FLSA. 1 16. All those Taiwanese and Italian workers were, like Plaintiffs and members of the class, employed by IPI under the H-2B visa 2 program.

3 17. IPI employed those Taiwanese and Italian workers to perform 4 the same types of work that Plaintiffs and members of the class performed. 5 18. With respect to the types of work they performed those 6 Taiwanese and Italian workers had the same or similar level of skills, qualifications, and experience as Plaintiffs and members of 7 the class. 8 19. However, those Taiwanese and Italian workers were paid by IPI 9 at a wage rate significantly higher—as much as three times higher— than Plaintiffs and members of the class. 10

(Id. ¶¶ 15-19.) 3 Plaintiffs name several Turkish workers with various positions who saw that 11 12 Italian and Taiwanese workers were paid more than the Turkish workers for the same work. (Id. 13 ¶¶ 20-27.) For example, Turkish electrician Ahmet Kucukhurman “observed that Taiwanese and 14 Italian workers doing the same work as he were paid $25 an hour, while his base pay was $8 an 15 hour.” (Id. ¶ 24.) Two supervisors of the Turkish workers, F. Mert Oztuna and Senol Barut, 16 “socialized with some of the Italian and Taiwanese workers and learned that their hourly wage was 17 higher than that of the Turkish team” even though the Turkish, Taiwanese, and Italian workers 18 19 worked on the same plan and production. (Id. ¶¶ 28-29.) Plaintiffs assert that Defendants IPI and 20 IPIH’s “upper-level management, meaning those persons who were actually in control of IPI’s 21 policies and management-level decision-making, intentionally discriminated against employees 22 with Turkish national origin” and that both Defendants “never had a system for setting wage rates 23 for construction workers based on objective criteria.” (Id. ¶¶ 30-31.) Because of IPI’s 24 25 26 27 3 The only difference in Paragraphs 15-19 from the original complaint and the first amended complaint is that Plaintiffs now allege Italian workers were also treated better. 1 discriminatory conduct, Plaintiffs assert class members, including themselves, suffered damages. 2 (Id. ¶ 32.) 3 Plaintiffs also sue IPIH under an alter ego theory. (Id. ¶¶ 3, 14.) As relief, Plaintiffs seek: 4 for the case to be expedited pursuant to 42 U.S.C. § 2000e-5(f)(5); class certification; 5 compensatory and punitive damages; costs, expenses, and attorneys’ fees pursuant to 42 U.S.C. 6 2000e-5(k); and any other such relief that is just. (Id. at 11.) 7 8 II. LEGAL STANDARD 9 IPI seeks to dismiss with prejudice Plaintiffs’ Title VII claim for failure to state a claim 10 pursuant to Federal Rule of Civil Procedure 12(b)(6). 11 A. Motion to Dismiss 12 To survive a motion to dismiss for failure to state a claim upon which relief can be granted 13 under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a pleading “must contain sufficient 14 15 factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. 16 Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 17 (2007)). The factual allegations need not be detailed, but a plaintiff must provide “more than an 18 unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678. “For 19 purposes of ruling on a Rule 12(b)(6) motion, the Court ‘accept[s] factual allegations in the 20 complaint as true and construe[s] the pleadings in the light most favorable to the nonmoving 21 party.’” P&G v. QuantifiCare Inc., 288 F. Supp. 3d 1002, 1010 (N.D. Cal. 2017) (quoting 22 23 Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008)). In determining 24 whether a motion to dismiss should be granted, there is a two-step process: first, “by identifying 25 pleadings that, because they are no more than conclusions, are not entitled to the assumption of 26 truth,” and second, “[w]hen there are well-pleaded factual allegations, a court should assume their 27 1 veracity and then determine whether they plausibly give rise to an entitlement to relief.” Iqbal, 556 2 U.S. at 679. 3 Generally, when ruling on a 12(b)(6) motion, a court may consider only the pleadings and 4 limited materials, such as “documents attached to the complaint, documents incorporated by 5 reference in the complaint, or matters of judicial notice.” United States v. Ritchie, 342 F.3d 903, 6 908 (9th Cir. 2003). If a court considers other evidence, “it must normally convert the 12(b)(6) 7 8 motion into a Rule 56 motion for summary judgment, and it must give the nonmoving party an 9 opportunity to respond.” Id. at 907. 10 If a motion to dismiss is granted, “leave to amend should be granted unless it is clear that 11 the deficiencies of the complaint cannot be cured by amendment.” Dog Bites Back, LLC v. 12 JPMorgan Chase Bank, N.A., 563 F. Supp. 3d 1120, 1123 (D. Nev. 2021) (citing DeSoto v. Yellow 13 Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992)). Federal Rule of Civil Procedure 15(a) 14 15 dictates that leave should be given freely “when justice so requires” and “in the absence of a reason 16 such as ‘undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to 17 cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by 18 virtue of allowance of the amendment, futility of the amendment, etc.’” Id. (quoting Foman v. 19 Davis, 371 U.S. 178, 182 (1962)). The Court’s “discretion to deny leave to amend is particularly 20 broad where plaintiff has previously amended the complaint.” Ascon Props., Inc. v. Mobil Oil Co., 21 866 F.2d 1149, 1160 (9th Cir. 1989) (citations omitted). 22 23 B. Employment Discrimination 24 To state an individualized claim for race-based disparate treatment under Title VII, a 25 plaintiff must allege sufficient facts to show that: “(1) [plaintiff] is a member of a protected class; 26 (2) [plaintiff] was qualified for [the] position; (3) [plaintiff] experienced an adverse employment 27 1 action; and (4) similarly situated individuals outside [plaintiff’s] protected class were treated more 2 favorably, or other circumstances surrounding the adverse employment action give rise to an 3 inference of discrimination.” Peterson v. Hewlett-Packard Co., 358 F.3d 599, 603 (9th Cir. 2004); 4 see Campbell v. Haw. Dep’t of Educ., 892 F.3d 1005, 1012 (9th Cir. 2018) (noting same). To 5 satisfy this fourth prong on “similarly situated,” the plaintiff “must demonstrate that he [or she] 6 was similar to [the] proposed comparator ‘in all material respects.’” Sheets v. City of Winslow, 859 7 8 F. App’x. 161, 162 (9th Cir. 2021) (quoting Moran v. Selig, 447 F.3d 748, 755 (9th Cir. 2006)). 9 “Individuals are similarly situated when they have similar jobs and display similar conduct.” 10 Vasquez v. County of Los Angeles, 349 F.3d 634, 641 (9th Cir. 2003). 11 The Court is mindful that a plaintiff does not need to plead a prima facie case in order to 12 survive a motion to dismiss. McGary v. City of Portland, 386 F.3d 1259, 1262 (9th Cir. 2004) 13 (quoting Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510-11 (2002)). The analysis at the motion 14 15 to dismiss phase for an employment discrimination case is focused on whether there are “enough 16 facts to state a claim to relief that is plausible on its face[.]” United States v. Valdez-Novoa, 780 17 F.3d 906, 916 n.1 (9th Cir. 2015) (quoting Twombly, 550 U.S. at 569-70) (noting the Supreme 18 Court’s holding that the plausibility standard is not contrary to its prior holding that an employment 19 discrimination complaint does not need to contain facts establishing a prima facie case of 20 discrimination). Nevertheless, district courts in the Ninth Circuit look to the elements of a prima 21 facie case in analyzing the sufficiency of an employment discrimination complaint. See Sablan v. 22 23 A.B. Won Pat Int'l Airport Auth., No. 10-00013, 2010 U.S. Dist. LEXIS 130692, at *13, 2010 WL 24 5148202, at *5 (D. Guam Dec. 9, 2010) (citations omitted) (“[C]ourts are now looking to those 25 elements to analyze a motion to dismiss—so as to decide, in the light of ‘judicial experience and 26 common sense,’ whether the challenged complaint ‘contain[s] sufficient factual matter, accepted 27 1 as true, to “state a claim to relief that is plausible on its face.”’”); Carter v. Brennan, No. 2:18-cv- 2 00823 MCE AC (PS), 2018 U.S. Dist. LEXIS 172048, at *6, 2018 WL 4810808, at *2 (E.D. Cal. 3 Oct. 4, 2018) (citations omitted) (“[T]he court must look to these elements [of a prima facie case 4 of discrimination] to decide whether plaintiff's complaint as pleaded contains sufficient factual 5 matter, accepted as true, to state a plausible claim for relief.”), report and recommendation 6 adopted, No. 2:18-CV-00823 MCE AC(PS), 2019 U.S. Dist. LEXIS 11066, 2019 WL 296948 7 8 (E.D. Cal. Jan. 23, 2019). 9 III. DISCUSSION 10 A. FAC Lacks Facts Regarding Sufficiently Similar Comparators 11 The main issue raised in this motion to dismiss the FAC is whether Plaintiffs plead 12 sufficient facts to plausibly satisfy the fourth element of the prima facie case of employment 13 discrimination that similarly situated employees not in their protected class received more 14 15 favorable treatment. Put another way, whether the FAC contains facts showing similarly situated, 16 non-Turkish individuals who were paid more than their Turkish “counterparts” for doing the same 17 work. And because the Court previously dismissed Plaintiffs’ complaint for the same deficiency, 18 IPI contends this Court should grant the dismissal with prejudice. After reviewing the parties’ 19 arguments and the applicable law, the Court agrees with IPI that Plaintiffs have not sufficiently 20 plead facts about similarly situated comparators, but grants Plaintiffs leave to amend their 21 complaint. 22 23 IPI highlights that Plaintiffs do not allege facts supporting their contention that they (or 24 other members of their class) were similarly situated to the Italian and Taiwanese workers; there 25 are “no factual allegations describing the jobs, titles, seniority, qualifications, or performance 26 27 1 levels of any of the Italian and Taiwanese workers who plaintiffs allege IPI paid more than them.”4 2 (Mot. 6-7.) In response, Plaintiffs rely upon Mallory v. Gartner, Inc., No. 2:21-cv-462-SPC-MRM, 3 2021 WL 3857652, *3 (M.D. Fla. Aug. 30, 2021), for the proposition that they do not need to 4 allege facts regarding comparators at the motion to dismiss phase since such information may only 5 be available once discovery commences. (Opp’n 2-3.) Defendant IPI also highlights Plaintiffs’ 6 mischaracterization of law regarding the standard required for pleading facts regarding 7 8 comparators at the complaint phase – Defendant does not assert that Plaintiffs must prove their 9 comparators at this stage, rather Plaintiffs “must allege sufficient, particularized facts for the Court 10 to plausibly infer at the motion-to-dismiss stage that Plaintiffs’ alleged comparators are similarly 11 situated to them[.]” (Reply 4.) 12 As described above, “individuals are similarly situated when they have similar jobs and 13 display similar conduct.” Vasquez, 349 F.3d at 641. Even construing the first amended complaint 14 15 in the light most favorable to Plaintiffs, Plaintiffs have not plead sufficient facts to conclude that 16 the Italians and Taiwanese are similarly situated – that the Turkish “have similar jobs and display 17 similar conduct” to the Italians and Taiwanese. 18 Notably absent from the first amended complaint are facts that state the Taiwanese and/or 19 Italian individuals who had similar jobs to Plaintiffs and were performing similar work to Plaintiffs 20 were paid more than Plaintiffs. In the beginning of their opposition brief, Plaintiffs provide a 21 narrative of facts about the pay disparity, including claims that Turkish electricians were “paid 22 23 substantially less than Taiwanese and Italian electricians” (Opp’n 1-2, ECF No. 26); however, the 24 25 26 4 IPI contends that while “[t]he only factual similarity Plaintiffs allege between themselves and other putative class members, on the one hand, and the workers of Taiwanese and Italian origin, on the other hand, is that IPI employed 27 all of them under the H-2B visa program,” such fact is not relevant to determining comparators. (Mot. 7, ECF No. 24 (citing FAC ¶ 16, ECF No. 20).) 1 amended complaint does not contain such facts. Thus, the Court did not consider these allegations 2 as plead in the FAC, but did factor them as Plaintiffs’ proffer of what they can plead specifically 3 in their second amended complaint if leave to amend was granted. 4 Furthermore, Plaintiffs are all foreman (FAC ¶¶ 5-7) but the first amended complaint does 5 not include facts about any Taiwanese or Italian foreperson beyond themselves. Plaintiffs specify 6 that their certificates of employment from IPI state that they are construction carpenters, plumbers, 7 8 and electricians (id.) but the FAC only mentions other electricians beyond Plaintiffs. Specifically, 9 two Turkish electricians state that they “observed . . . Taiwanese and Italian workers doing the 10 same work as [them] were paid” more than them. (Id. ¶¶ 23-24.) Mr. Kucukhurman even specifies 11 that he was paid $8 an hour as an electrician while “Taiwanese and Italian workers doing the same 12 work as he were paid $25 an hour[.]” (Id. ¶ 24.) Plaintiff Köş earned $8.35 an hour as an electrician, 13 and $10.50 an hour as an electrical foreman. (ECF No. 20-5.) So, as both an electrician and an 14 15 electrical foreman, Mr. Köş was making less than Taiwanese and Italian “workers doing the same 16 work.” However, even with these drawn inferences, it is unclear whether there are similarly 17 situated, non-Turkish individuals who made more than Mr. Köş. Stating that Turkish electrician 18 Mr. Kucukhurman “observed that Taiwanese and Italian workers doing the same work as he were 19 paid $25 an hour, while his base pay was $8 an hour” (FAC ¶ 24) (emphasis added) is insufficient 20 to show a similarly situated comparator because the term “workers” is too broad to conclude that 21 they have similar jobs as him such that they are similarly situated individuals. As discussed at the 22 23 hearing, the other paragraphs are similarly deficient.5 Plaintiffs’ use of the term “workers” 24

25 5 Conversely, other facts alleged in the First Amended Complaint are too vague and simply state that Taiwanese 26 and/or Italian workers were paid more than Turkish workers. (FAC ¶¶ 19, 21, 25, 27, 28-29, ECF No. 20.) As the Court noted at the hearing on the original motion to dismiss, such allegations are too vague as Plaintiffs could be 27 comparing a foreman to a supervising engineer. (Tr. at 15:4-21.) 1 throughout the first amended complaint is too broad to conclude that that there were similarly 2 situated individuals outside of Plaintiffs’ class that were treated more favorably. Therefore, the 3 first amended complaint does not contain sufficient facts to plausibly allege that the Italian and 4 Taiwanese are appropriate comparators. See Nguyen v. Boeing Co., No. C15-793RAJ, 2016 U.S. 5 Dist. LEXIS 176041, at *8, 2016 WL 7375276, at *3 (W.D. Wash. Dec. 20, 2016) (dismissing 6 disparate treatment claim because the plaintiff’s conclusory allegations that a comparator’s salary 7 8 was higher did not demonstrate that the plaintiff was treated differently despite displaying similar 9 conduct (i.e. similarly situated)); Ardalan v. McHugh, No. 13-cv-01138-BLF, 2014 U.S. Dist. 10 LEXIS 106984, at *27, 2014 WL 3846062, at *8 (N.D. Cal. Aug. 4, 2014) (citing Vasquez, 349 11 F.3d at 641) (“A cursory pleading that, in general, European and Eastern European employees of 12 DLI were treated better than Middle Eastern and Asian employees of DLI does not suffice. Plaintiff 13 has not pled that any of those European or Eastern European employees were similarly situated to 14 15 her in all material respects.”). 16 Contrary to Plaintiffs’ assertion that an analysis of comparators is inappropriate at the 17 pleading stage when pursuing a claim of disparate treatment, the complaint must contain facts 18 about similarly situated individuals being treated more favorably or other facts giving rise to an 19 inference of discrimination. See Sheets, 589 Fed.Appx. at 162 (affirming grant of motion to dismiss 20 because the plaintiff failed to plead facts for a court to determine whether the alleged comparator 21 was similarly situated); Ardalan, 2014 U.S. Dist. LEXIS 106984, at *34, 2014 WL 3846062, at 22 23 *10 (citations omitted) (“Plaintiff must sufficiently plead that these employees are similarly 24 situated to her.”); Dixon v. Dep't of Educ., No. 16-00110 DKW-KJM, 2018 U.S. Dist. LEXIS 25 80980, at *35-36, 2018 WL 2207126, at *12 (D. Haw. May 14, 2018) (citations omitted) (finding 26 that the plaintiff failed to state a claim of race based disparate treatment as she failed to plead facts 27 1 that she was similarly situated to a purported comparator beyond their shared job title), aff'd sub 2 nom. 783 F. App'x 787 (9th Cir. 2019). Plaintiffs’ reliance upon Mallory, 2021 WL 3857652 is 3 misplaced because there the court cited several decisions wherein courts “dismiss[ed] complaints 4 for failing to allege enough factual support on the comparators” to reach a similar conclusion that 5 the plaintiff did “not allege how she and the proffered comparators were similarly situated.” 6 Mallory, at *3. In Mallory, the court found that the plaintiff did “not plausibly allege[] that any 7 8 similarly situated employees were treated differently” as she only stated that the defendant 9 subjected her “to a more rigorous training program than her other non-Hispanic co-workers and 10 refused to transfer to a more suitable territory.” Id. Similarly, Plaintiffs’ cited case of Berney v. 11 Apple Inc., No. 3:20 CV 1379, 2021 WL 6334985, at *3 (D. Conn. May 27, 2021) is inapposite 12 because while the Berney court noted that the issue regarding whether individuals were appropriate 13 comparators “may be addressed at a later stage of this litigation[,]” the court there was resolving a 14 15 motion to compel discovery wherein the defendant was withholding discovery based on its own 16 determination that the discovery did not pertain to comparators. The Berney court held that the 17 plaintiff was entitled to that discovery so he could make his own determination of who is similarly 18 situated. Id. Furthermore, the Berney court acknowledged the plaintiff’s burden to compare herself 19 to comparators that were “similarly situated in all material respects.” Id. (citations omitted). 20 Finally, Bhatinagar v. Meyer, No. 21-126-CFC, 2021 WL 7209368, at *4 (D. Del. Dec. 20, 2021) 21 lends no support to Plaintiffs as there the plaintiff had plead facts to identify a comparator to 22 23 himself, “‘[a]n able and qualified Hindu, South Asian male attorney of Indian descent’ who ‘was 24 terminated for a minor offense’”– compared to “poorly performing Christian, white, native born, 25 female attorneys.” 26 // 27 1 B. Leave to Amend 2 IPI argues that the first amended complaint should be dismissed with prejudice because 3 Plaintiffs failed to heed the Court’s instructions on amending a complaint to include factual 4 allegations beyond conclusory assertions. (Mot. 19-20.) At the hearing, Plaintiffs argued that leave 5 to amend should be granted because the first amended complaint could be ameliorated to allege 6 sufficiently similar comparators with changes discussed during the hearing. 7 8 Bearing in mind “[t]he Ninth Circuit[’s] . . . liberal policy favoring amendments;” Johnson 9 v. Winco Foods, LLC, No. ED CV 17-2288-DOC (SHKx), 2018 WL 6017012, at *9 (C.D. Cal. 10 Apr. 2, 2018) (citing DeSoto, 957 F.2d at 658); the Court grants Plaintiffs leave to amend their 11 first amended complaint. Contrary to IPI’s assertion, leave to amend would not be futile as 12 demonstrated by the fruitful discussion held at the hearing detailing the deficiencies that need to 13 be corrected to satisfy the fourth prong of the prima facie case. Cf. Ardalan, 2014 U.S. Dist. LEXIS 14 15 106984, at *34, 2014 WL 3846062, at *10 (granting the plaintiff leave to amend her Title VII 16 claims after identifying the defects that need to be corrected in light of new facts the plaintiff 17 alleged in a supplemental brief). 18 Additionally, Sheets, which IPI cites, does not mandate denial of leave to amend. In Sheets, 19 the Ninth Circuit affirmed the district court’s dismissal of the second amended complaint with 20 prejudice as the plaintiff failed to cure the deficiencies previously identified in the first amended 21 complaint; however, in doing so, the Ninth Circuit noted the plaintiff’s “numerous opportunities 22 23 to provide the necessary factual allegations[.]” 85 Fed.Appx. at 162-63; but see DeFrancesco v. 24 Ariz. Bd. of Regents, No. CV-20-00011-TUC-CKJ, 2021 WL 4170673, at *5, 2021 U.S. Dist. 25 LEXIS 174567, at *17-18 (D. Ariz. Sept. 14, 2021) (dismissing first amended complaint because 26 the plaintiff proffered insufficient allegations “despite the Court’s advice”), appeal filed, No. 21- 27 1 16530 (9th Cir. Sept. 17, 2021). Unlike Sheets, this case is only at the first amended complaint; 2 Plaintiffs here have not been provided “numerous opportunities[,]” they have only been provided 3 leave to amend once. Additionally, IPI has not identified “undue delay, bad faith or dilatory motive 4 on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, 5 undue prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of the 6 amendment” that would warrant dismissal with prejudice. See Dog Bites Back LLC, 563 F. 7 8 Supp.3d at 1123 (citation omitted). The Court exercises its discretion and provides Plaintiffs leave 9 to amend; however, the Court may be less forgiving if Plaintiffs fail to plausibly allege sufficiently 10 similar comparators in their second amended complaint. 11 IV. CONCLUSION 12 Because the first amended complaint fails to adequately plead facts that show non-Turkish, 13 similarly situated individuals were paid more than Plaintiffs, the Court DISMISSES the first 14 15 amended complaint as to the three named Plaintiffs. As such, the Court also DISMISSES the class 16 action claim because the underlying individual claims fail. See Young v. AmeriGas Propane, Inc., 17 No. 14-cv-00583-BAS (RBB), 2014 WL 5092878, at *5 (S.D. Cal. Oct. 9, 2014) (“Since Plaintiff's 18 case must be dismissed, the class action can no longer stand.”). 19 The Court GRANTS Plaintiffs leave to amend. Furthermore, at the hearing, the Court 20 granted Plaintiffs’ oral motion for an extension of time to file the second amended complaint such 21 that it is due by November 4, 2022. Additionally, should IPI require additional time to respond to 22 23 the second amended complaint, whether by answer or motion, such request for additional time will 24 not be opposed by Plaintiffs and will be granted by the Court. 25 26

27 1 SO ORDERED this 14th day of October, 2022. 3 4 RAMONA V. MANGLONA Chief Judge 6 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15