Kristeena Tinnin v. Sutter Valley Medical Foundation

Opinion

KRISTEENA TINNIN, on behalf of Case No. 1:20-cv-00482-JLT-EPG herself and all others similarly situated, Plaintiff, ORDER DENYING MOTION TO DISMISS, v. STAY, AND/OR STRIKE SUTTER VALLEY MEDICAL (Doc. 32) FOUNDATION, and DOES 1 through 20, inclusive, Defendants. Kristeena Tinnin alleges her former employer committed wage and hour violations under the federal Fair Labor Standards Act, various provisions of the California Labor Code, and California’s Unfair Competition Law, Cal. Bus. & Prof. Code § 17200, et seq. (Doc. 1.) In the instant motion, Defendant argues that the FLSA cause of action should be dismissed for failure to state a claim; and that the California class action claims should be dismissed or stayed, or, failing this, that the class allegations should be stricken. (Doc. 32.) For the reasons set forth below, Defendant’s motion is DENIED. A. Motion to Dismiss Standard A Rule 12(b)(6) motion “tests the legal sufficiency of a claim.” Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). In ruling on a motion to dismiss filed pursuant to Rule 12(b), the Court “may generally consider only allegations contained in the pleadings, exhibits attached to the complaint, and matters properly subject to judicial notice.” Outdoor Media Grp., Inc. v. City of Beaumont, 506 F.3d 895, 899 (9th Cir. 2007) (citation and quotation marks omitted). Dismissal of a claim under Rule 12(b)(6) is appropriate when “the complaint lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory.” Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). Thus, “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The Supreme Court explained, A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a “probability requirement,” but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are “merely consistent with” a defendant’s liability, it “stops short of the line between possibility and plausibility of ‘entitlement to relief.’” Iqbal, 556 U.S. at 678 (internal citations omitted). When considering a motion to dismiss, the Court must accept the factual allegations made in the complaint as true. Hosp. Bldg. Co. v. Rex Hosp. Tr., 425 U.S. 738, 740 (1976). A court must construe the pleading in the light most favorable to the plaintiffs and resolve all doubts in favor of the plaintiffs. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). However, legal conclusions need not be taken as true when “cast in the form of factual allegations.” Ileto v. Glock, Inc., 349 F.3d 1191, 1200 (9th Cir. 2003). To the extent pleadings can be cured by the plaintiff alleging additional facts, leave to amend should be granted. Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv., Inc., 911 F.2d 242, 247 (9th Cir. 1990) (citations omitted). B. Analysis of FLSA Claim Plaintiff’s first claim for relief arises under the FLSA, which regulates the minimum wages paid to employees, including wages for “overtime” work. See 29 U.S.C. §§ 206-207; Dent v. Cox Commc’ns. Las Vegas, Inc., 502 F.3d 1141, 1143 (9th Cir. 2007). Under the FLSA, an employee who works more than forty hours a week must be paid at least one and one-half times his or her regular rate for the additional hours. 29 U.S.C. § 207(a)(1). An employer who violates Section 207 “shall be liable to the employee or employees affected in the amount of their . . . unpaid overtime compensation . . . and in an additional equal amount as liquidated damages.” 29 U.S.C. § 216(b). In moving to dismiss, Defendant relies principally (see Doc. 32 at 11–12) on Landers v. Quality Commc’ns, Inc., in which the Ninth Circuit addressed for the first time “the degree of specificity required to state a claim for failure to pay minimum wages or overtime wages under the FLSA” following the Supreme Court’s decisions in Twombly and Iqbal. 771 F.3d 638, 640 (9th Cir. 2015). The Ninth Circuit noted: “Pre-Twombly and Iqbal, a complaint under the FLSA for minimum wages or overtime wages merely had to allege that the employer failed to pay the employee minimum wages or overtime wages.” Id. at 641. However, the Ninth Circuit observed that with Twombly and Iqbal, the Supreme Court clarified plaintiffs must allege facts sufficient to “state[] a plausible claim for relief.” Id. Therefore, the Ninth Circuit determined that “to survive a motion to dismiss, a plaintiff asserting a claim to overtime payments must allege that she worked more than forty hours in a given workweek without being compensated for the overtime hours worked during that workweek.” Id. at 644–45. Landers explained: [T]he plausibility of a claim is “context-specific.” A plaintiff may establish a plausible claim by estimating the length of her average workweek during the applicable period and the average rate at which she was paid, the amount of overtime wages she believes she is owed, or any other facts that will permit the court to find plausibility. Obviously, with the pleading of more specific facts, the closer the complaint moves toward plausibility. However, like the other circuit courts that have ruled before us, we decline to make the approximation of overtime hours the sine qua non of plausibility for claims brought under the FLSA. Landers, 771 F.3d at 645 (internal citations omitted). Accordingly, generalized allegations of FLSA violations will not suffice. Id. at 645–66. Landers alleged his employer “implemented a ‘de facto piecework no overtime’ system and/or failed to pay . . . overtime wages for the hours worked by Landers,” which resulted in “the plaintiffs not being paid time and one-half their ‘regular hourly rate’ for work in excess of 40 hours a week.” Id. at 645–46. Further, Landers asserted he “worked more than 40 hours per week for the defendants, and the defendants willfully failed to make said overtime and/or minimum wage payments.” Id. at 646. The Ninth Circuit determined these allegations were insufficiently specific, observing: “Notably absent from the allegations in Landers’s complaint . . . was any detail regarding a given workweek when Landers worked in excess of forty hours and was not paid overtime for that given workweek and/or was not paid minimum wages.” Id. Though FLSA plaintiffs “cannot be expected to allege ‘with mathematical precision,’ the amount of overtime compensation owed by the employer, they should be able to allege facts demonstrating there was at least one workweek in which they worked in excess of forty hours and were not paid overtime wages.” Id. (citation omitted). Therefore, Landers failed to allege facts sufficient to support a claim for violation of the FLSA. Id. Following Landers, courts have rejected allegations that do no more than parrot the elements of an FLSA claim. See, e.g., Tan v. GrubHub, Inc., 171 F. Supp. 3d 998, 1007–08 (N.D Cal. 2016) (finding FLSA claim too conclusory because “[t]here are no allegations about what period of time or type of conduct Plaintiffs are counting as hours worked. Without these basic factual allegations, the Court cannot conclude that Plaintiffs’ minimum wage or overtime claims are plausible.”); Shann v. Durham Sch. Servs., L.P., 182 F. Supp. 3d 1044, 1047 (C.D. Cal. 2016) (finding insufficient allegation that plaintiffs “worked more than 40 hours per week, without being paid the proper overtime pay as required by the FLSA, during the period of time they worked ‘off the clock’”). For example, in Perez, cited here by Defendant, the plaintiffs alleged they suffered minimum wage and overtime wage violations under the FLSA because they: (1) were interrupted during their breaks, (2) were paid for less than the overtime hours actually worked, (3) were not provided with premium payments for all meal and rest periods that defendants forced them to miss, (4) had their time records improperly adjusted to reflect meal breaks that were not actually taken, (5) were required to finish their allotted work even after clocking out for the day, and (6) did not have the value of certain fringe benefits factored into the calculation of their rate of pay for overtime hours. Perez, 2020 WL 4344911 at * 8. Of particular note, the Perez plaintiffs did not “identify a single workweek where they were not paid the . . . overtime pay for any hours worked in excess of eight hours in one workday and forty hours in any one workweek.” Id. Perez noted that though one plaintiff alleged she “often works 48 hours per week over 6 days, but . . . is only paid for 43 to 45 hours for those [hours],” she did not allege “what constitutes ‘often’ and whether it even represents the ‘average workweek during the applicable period.’” Id. (quoting Landers, 771 F.3d at 645). Furthermore, the Perez plaintiffs did not identify the average rates at which they were paid or estimate the amount of overtime wages owed. Id. Accordingly, dismissal of the overtime claim was appropriate. Id.; see also Barajas v. Blue Diamond Growers Inc., No. 1:20-CV-0679 JLT SKO, 2022 WL 1103841, at *10 (E.D. Cal. Apr. 13, 2022) (finding insufficient allegation that defendant “routinely” required “Plaintiffs and similarly situated employees to work more than 40 hours per week, and routinely without paying them all overtime premium wages for hours worked in excess of 40 hours per week,” because, without any additional details, “Landers established a plaintiff’s allegation that overtime occurred ‘routinely’ is not sufficient to establish the plausibility of a claim”). However, “Landers does not require the plaintiff to identify an exact calendar week or particular instance of denied overtime; instead, the allegations need only give rise to a plausible inference that there was such an instance.” Tan, 171 F. Supp. 3d at 1008 (citing Boon v Canon Business Solutions, Inc., 592 Fed. Appx. 631, 632 (9th Cir. 2015)). In Boon, the Ninth Circuit rejected a district court’s strict interpretation of Landers that required a complaint “contain an estimate of how much uncompensated time was worked, how often, and at what rate to survive a motion to dismiss.” 592 Fed. Appx. at 632 (internal quotation marks and alteration omitted). Instead, a plaintiff must identify facts that give rise to a plausible inference that he was not paid minimum wage or overtime during at least one work week. Id. It was sufficient that the complaint in Boon “identified tasks for which [the plaintiff] was not paid and alleged that [the plaintiff] regularly worked more than eight hours in a day and forty hours in a week.” A detailed example of such task-specific allegations is presented in Price v. Wells Fargo & Co., No. 22-CV-03128- JSC, 2022 WL 4225396, at *2 (N.D. Cal. Sept. 13, 2022). There, plaintiffs who worked as telephone customer service representatives and home loan processing agents, advanced the following allegations: [Plaintiffs] are required to be “ready to handle a call at the start of their scheduled shift time,” but they first have to “log[ ] on into Wells Fargo’s telephone systems and call queue” which requires them to arrive at work prior to their scheduled shift time to “boot up computers, initialize several software programs, and read company emails and/or instructions.” In particular, they are required “to open and initialize several software programs, such as Timetracker, DAT, Hogan, CIV, Visa, Claims, SOTA, Windows, Outlook, Cisco Jabber, and Workday among others.” Opening these programs and systems takes “additional time” and it is only “after all the processes are completed and programs started could Plaintiffs and other similarly situated employees log into Soft Phone, which commences and records the paid portion of their workday.” Plaintiffs also allege that pursuant to Wells Fargo’s policy and practice, employees are subject to discipline if “they are not logged into their phones and ready to handle calls by the start of their scheduled shift time.” Employees likewise “regularly worked past the end of their scheduled shift times when [they] logged off their software programs and computers and secured their work stations and Wells Fargo’s customer and proprietary information pursuant to Wells Fargo’s policies and practices.” Plaintiffs allege that Wells Fargo is aware of this off-the-clock work because managers and supervisors physically observed employees performing this off-the- clock work and received electronic reports of employees performing this off-the-clock work. 2022 WL 4225396, at *2 (record citations omitted). These cumulative allegations provided “sufficient detail about the length and frequency of [plaintiffs’] unpaid work to support a reasonable inference that [they] worked more than forty hours in a given week” Id. Though Boon suggests that a plaintiff states a FLSA claim by identifying tasks for which they were not paid, these descriptions must provide “meaningful detail.” Compare Turner v. LTF Club Mgmt. Co., LLC, No. 2:20-CV-00046-KJM-JDP, 2022 WL 1018498, at *6 (E.D. Cal. Apr. 5, 2022) (allegations insufficient where plaintiff “merely provide[d] a description of general work duties common to many workplaces” and “d[id]not provide any meaningful detail to give a sense of when the alleged violations happened or how often they happened”), with Sagastume v. Psychemedics Corp., No. CV 20-6624 DSF (GJSx), 2020 WL 8175597, at *3 (C.D. Cal. Nov. 30, 2020) (allegations sufficient where plaintiff claimed “she and other class members worked in excess of eight hours a day or forty hours a week performing work duties off the clock, ‘such as performing data entry, analyzing hair samples, weighing hair samples, cleaning and organizing work station, gathering supplies necessary for work-related tasks, [and] receiving and answering work-related questions from supervisors and managers’”). The SAC contains the following substantive FLSA overtime allegations: On an average given work week, Plaintiff was scheduled to work from about 8 AM to 5:30 PM. However, Plaintiff was required to arrive at work 30-minutes early because she would be marked late otherwise. Plaintiff would wait at the workplace before clocking in five (5) minutes before her shift. Similarly, on an average given work week, Plaintiff was also required to work during break periods without compensation. This time worked in an average work week exceeded the forty hours of work she was scheduled for and resulted in overtime hours worked. Plaintiff was never compensated for these overtime hours worked while in the employ of Defendant. (SAC, ¶ 50.) These allegations, though not as robust as those in Price or in Sagastume, “nudge” the FLSA claim “across the line from conceivable to plausible.” Twombly, 550 U.S. at 570. The SAC explains what kinds of activities Plaintiff claims were uncompensated and indicates that this uncompensated time pushed Plaintiff’s workweek beyond forty hours. The SAC further alleges that such weeks—weeks in which Plaintiff was required to work uncompensated time beyond forty hours—were indeed her “average” workweeks. This allegation plausibly suggests that uncompensated work was the “norm”1 for Plaintiff. In light of Boon and its progeny, the SAC’s FLSA allegations are sufficient for pleading purposes. Defendant’s motion to dismiss the FLSA claim is DENIED. III. MOTION TO DISMISS OR STAY CALIFORNIA CLASS CLAIMS Defendant next moves to dismiss or stay the California Class claims based upon the first- to-file doctrine and Colorado River abstention. Alternatively, Defendant request a discretionary Landis stay. A. First-to-File Rule Defendant first argues that the so called “first-to-file” doctrine warrants a stay of the California Class Claims because similar claims were pending in two state court actions2 prior to

1 One definition of “average” is “a typical amount, rate, degree, etc.; norm.” Average, Dictionary.com (last visited December 23, 2022). 2 Those actions are Price v. Sutter Valley Med. Foun., Stanislaus County Superior Court Case No. CV-19-001331, Plaintiff amending her complaint to include California class claims in this case. The Court need not belabor an analysis of the content and timing of the state court actions vis-à-vis this case because regardless of their similarity or timing, the first-to-file doctrine does not apply to cases brought before a different sovereign. As one district court in California recently explained: The first-to-file rule is a doctrine of federal comity that “permits a district court to decline jurisdiction over an action when a complaint involving the same parties and issues has already been filed in another district.” Pacesetter Sys. v. Medtronic, Inc., 678 F.2d 93, 94– 95 (9th Cir. 1982). It permits a court to exercise its discretion to dismiss, stay, or transfer a case “in deference to an earlier-filed suit” involving substantially the same parties and issues. In re Bozic, 888 F.3d 1048, 1052, 1055 (9th Cir. 2018). The first-to-file rule applies to cases “previously filed in another district court.” Kohn L. Grp., Inc. v. Auto Parts Mfg. Miss., Inc., 787 F.3d 1237, 1239 (9th Cir. 2015) (emphasis added). As such, it does not enable federal courts to dismiss, stay, or transfer a case based on an earlier-filed suit pending in state court. See Kelley v. HCR ManorCare, Inc., No. SACV 17-1259 JVS (JCGx), 2017 WL 10441310, at *2 (C.D. Cal. Nov. 28, 2017) (“[T]he first-to-file doctrine does not extend to state court proceedings.”); Cummins v. Lollar, CV 11-08081 DMG (MANx), 2011 WL 13134834, at *4 (C.D. Cal. Dec. 14, 2011) (finding the rule did not apply because the first-filed case was pending in state court); Occhionero [v. Salinas], No. 1:16-cv-00311-DAD-SAB, 2016 WL 3448104, at *4 (E.D. Cal. Jun. 23, 2016) (explaining that the rule “does not require dismissal of federal proceedings because the first suit was filed in state court”). Murphy v. Viad Corp., No. CV 21-7839 PSG (MARx), 2022 WL 3137720, at *3–*4 (C.D. Cal. May 13, 2022). Though there are a few outlying decisions that suggest otherwise, see Gens v. SEZ Am., Inc., No. C 05-01009 JF (PVT), 2007 WL 832050, at *4 (N.D. Cal. Mar. 19, 2007), the overwhelming majority of cases have concluded that “the federal first-to-file rule does not apply” where the first-filed case is pending in state court. See Murphy, 2022 WL 3137720, at *4.3 Moreover, “[t]he Supreme Court has been clear that the Colorado River abstention doctrine, rather than the first-to-file rule, governs a federal court’s decision whether to defer to a state court and abstain from exercising jurisdiction and that abstention under Colorado River should be much rarer than abstention under the first-to-file rule.” Wells Fargo Bank, N.A. v. Zadourian, No. CV 3 Defendant appears to be deliberately ignoring this aspect of the caselaw, choosing to cite to various cases for the proposition that application of the first-to-file doctrine is discretionary, without acknowledging that those cases 20-7512-JFW(JPRX), 2021 WL 8945108, at *1 (C.D. Cal. Feb. 10, 2021) (internal citations omitted). Thus, Defendant’s request for a stay based upon the first-to-file rule is DENIED. B. Colorado River Abstention In its original motion, filed March 10, 2021, Defendant also argued that a stay of the California Class claims is warranted under the abstention doctrine set forth in Colorado River Water Conservation District v. United States, 424 U.S. 800 (1976). At that time, Defendant did not request that the Court stay the FLSA claims pursuant to Colorado River. (See Doc. 32 at 15– 19.) However, on February 24, 2021, several weeks before Defendant filed its motion to dismiss, the Ninth Circuit issue a ruling that explicitly prohibits partial Colorado River stays. United States v. State Water Res. Control Bd., 988 F.3d 1194 (9th Cir. 2021). Defendant acknowledged this holding in their reply, and sought a complete stay of all the claims, including the FLSA claim. (Doc. 46 at 7.) This change of course required an entire new line of argument addressing whether the state overtime claims may render the FLSA claims moot. (See id. at 7–8.) These arguments, raised for the first time in reply, need not be considered by the Court. Xiong v. Chavez, No. 1:13- CV-00083-SKO, 2016 WL 345609, at *20 (E.D. Cal. Jan. 28, 2016) (“Reply briefs should be limited to matters raised in the opposition papers. It is improper for the moving party to introduce new facts or different legal arguments in the reply brief than presented in the moving papers.”) (citing Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007) (“district court need not consider arguments raised for the first time in a reply brief”)). Defendant’s motion for a partial stay pursuant to Colorado River is in conflict with binding caselaw and is therefore DENIED; the alternative motion for a complete stay is likewise DENIED because that argument was raised for the first time in reply. C. Landis Stay Defendant next argues that a stay of the California class claims is warranted under Landis v. North American Co., 299 U.S. 248, 254 (1936). In the context of a Landis stay request, courts in the Ninth Circuit weigh the “competing interests which will be affected by the granting or refusal to grant a stay,” including: “[1] the possible damage which may result from the granting of a stay, [2] the hardship or inequity which a party may suffer in being required to go forward, and [3] the orderly course of justice measured in terms of the simplifying or complicating of issues, proof, and questions of law which could be expected to result from a stay.” Lockyer v. Mirant, 398 F.3d 1098, 1110 (9th Cir. 2005) (quoting CMAX, Inc. v. Hall, 300 F.2d 265, 268 (9th Cir. 1962)). Assuming purely for purposes of argument that a Landis stay is appropriate where the competing action arises in state court,4 the present record does not justify such an action at this time. In pressing for a Landis stay of the California class claims only, Defendant makes two central arguments. First, Defendant maintains that a stay will promote judicial efficiency because the Class claims in this matter are nearly identical to those in the Price and Rodriguez actions. Absent a stay, Defendant argues that this Court will have to address nearly identical class certification and possibly summary judgment motions, risking inconsistent outcomes. (Doc. 32 at 20.) Second, Defendant argues that a stay is warranted because it is facing the “immense burden” of defending against the same issues and responding to the same discovery in separate cases. (Id.) As to the “immense burden” argument, it is notable that Defendant’s initial motion sought only to stay the California class claims, not Plaintiff’s FLSA claims, under Landis.5 This alone almost completely undermines this basis for imposing a Landis stay. There is considerable factual overlap between Plaintiff’s FLSA claim and her California class claims. As a result, discovery related to the FLSA claim likely will substantially overlap that which will take place in

4 Plaintiff suggests that, like with the first-to-file doctrine, a Landis stay is inherently inappropriate where the competing litigation was filed in state court. There appears to be a split in authority on this issue. In Patel v. City of Los Angeles, 594 Fed. Appx. 415, 416 (9th Cir. 2015), the Ninth Circuit suggested in dicta that a district court could stay proceedings during the pendency of a state court action under Landis. Some district courts have read Patel as confirming a district court’s authority to issue a Landis stay in the face of a competing state court action. See Noble v. JP Morgan Chase Bank, Nat’l Ass’n, No. 22-CV-02879-LB, 2022 WL 4229311, at *7 (N.D. Cal. Sept. 13, 2022)’ Icon at Panorama, LLC v. Sw. Reg’l Council of Carpenters, No. CV 19-00181 CBM (MRWx), 2020 WL 5751228, at *1 (C.D. Cal. Mar. 12, 2020). Others have found that using Landis under such circumstances would undermine Colorado River’s rules. See Fisk Elec. Co. v. Obayashi Corp., No. 18-CV-07671-EMC, 2021 WL 197671, at *2 (N.D. Cal. Jan. 20, 2021) (collecting cases and reasoning that Patel’s dicta is not binding on lower courts). 5 In its reply, Defendant appears to again make a new argument for first time, namely that a discretionary stay—or even outright dismissal—of this entire action might be appropriate under Landis. (See Doc. 46 at 10.) First, the Court is aware of no authority that suggests that the court has “discretionary” authority to dismiss a case. Second, as previously mentioned, this Court may disregard arguments raised for the first time in reply. connection with the California class claims. Moreover, the Court is confident that counsel can work to avoid duplicative burdens through coordinated discovery agreements. As to judicial efficiency, the Court finds it difficult to fully evaluate that argument at this time. First, it is not well developed in the briefs. Defendant simply argues in a single sentence that “if the California Class Claims in [this] Action are not stayed, there will be a waste of judicial resources in addressing nearly identical class certification and summary judgment motions, and a high risk of conflicting or inconsistent outcomes.” (Doc. 32 at 20.) These arguments depend necessarily on the exact trajectory of any competing litigation: Are class certification and/or summary judgment motions pending or forthcoming in those cases? Do they substantially overlap? The record related to the pending motions is inadequate and stale6 on these issues.7 The Court find a Landis stay is not warranted on the present record. This request is DENIED Finally, Defendant moves to strike Plaintiff’s class definition pursuant to Federal Rule of Civil Procedure 12(f) on the ground that the SAC advances an “improper fail-safe class definition.” (Doc. 32 at 21–22.) A “fail-safe” class is one that “impermissibly determines membership based upon a determination of liability.” Lewis v. First Am. Title Ins., 265 F.R.D. 536, 551 (D. Idaho 2010); see also Brazil v. Dell Inc., 585 F. Supp. 2d 1158, 1167 (N.D. Cal. 2008) (finding proposed class was a “fail-safe “class that could not be ascertained where in order “[t]o determine who should be a member of these classes, it would be necessary for the court to reach a legal determination” that the defendant was liable). The Ninth Circuit has indicated that “obvious problems” arise “when

6 The Court acknowledges that it is not the Parties’ fault that these motions have been pending for more than a year. This Court is laboring under an extraordinary resource shortage and the undersigned inherited more than 100 ripe civil motions shortly after being confirmed to the District Court bench in early 2022.

7 The Court notes that it has reviewed and takes judicial notice of the public dockets in both the Price and Rodriguez actions. Both cases were referred to settlement conferences by orders dated December 21, 2021. More recently, in Price, the Plaintiff in this action filed a motion on November 28, 2022, seeking to intervene in Price in light of the settlement conference apparently scheduled for January 8, 2023. (See Price Docket.) That motion remains under submission. Nothing in either docket suggests any active motions practice that will be duplicative of anything the class itself is defined in a way that precludes membership unless the liability of the defendant is established,” including unfairness to the defendant and difficulties determining which individuals should receive the class notice. See Kamar v. RadioShack Corp., 375 Fed. Appx. 734, 736 (9th Cir. 2010). The Court understands Defendant’s concern in this regard. The SAC proposes the following California class: All persons who are employed or have been employed by Sutter Valley Medical Center in the State of California who, within four (4) years of the filing of the Complaint in this case, who have worked as non- exempt hourly employees and were not paid all lawful wages or not paid statutory penalties; and (SAC, ¶ 34 (emphasis added).) The caselaw as to what constitutes a fail-safe class is somewhat more nuanced than either party acknowledges in their briefs. That notwithstanding, the Court finds that the procedural mechanism of a motion to strike is not the appropriate means for addressing a fail-safe problem. Defendant indicates that district courts “routinely” strike fail-safe class definitions. (Doc. 32 at 21 (citing Dodd-Owens v. Kyphon, Inc., No. C 06-3988 JF (HRL), 2007 WL 420191, at *3 (N.D. Cal. Feb. 5, 2007) (striking the words “who have experienced gender discrimination . . .” from a class definition on the ground that it created a “fail-safe class”); Brazil v. Dell, 585 F. Supp. 2d 1158, 1167 (N.D. Cal. 2008) (striking class definitions because class defined as all persons who purchased Dell computer products that “Dell falsely advertised.”)).) More recent cases acknowledge that because the Ninth Circuit has not expressly forbidden fail safe classes, district courts retain discretion to redefine the class to avoid the fail-safe problem during the class certification process. See In re Autozone, Inc., Wage & Hour Emp’t Practices Litig., 289 F.R.D. 526, 546 (N.D. Cal. 2012); see also Miholich v. Senior Life Ins. Co., No. 21-CV-1123-WQH- AGS, 2022 WL 410945, at *6 (S.D. Cal. Feb. 10, 2022), reconsideration denied, No. 21-CV- 1123-WQH-AGS, 2022 WL 1505865 (S.D. Cal. May 12, 2022) (denying motion to strike class allegations defendant argued were “fail-safe,” finding such a motion premature); Rennick v. NPAS Sols., LLC, No. 19-CV-02495-ODW(KSX), 2020 WL 244170, at *2 (C.D. Cal. Jan. 16, 2020) (indicating that “[s]triking class allegations prior to a formal certification motion is generally disfavored due to the lack of a developed factual record”); Mattson v. New Penn Fin., } LLC, No. 3:18-CV-00990-YY, 2018 WL 6735088, at *4 (D. Or. Nov. 6, 2018), report and recommendation adopted, No. 3:18-CV-00990-YY, 2019 WL 123870 (D. Or. Jan. 4, 2019) (recommending denial of motion to strike because such motions are disfavored and instead recommending evaluation of the class as it is defined in a subsequent motion for class certification); Moser v. Health Ins. Innovations, Inc., No. 17-cv-1127-WQH-KSC, 2018 WL 325112, at *11 (S.D. Cal. 2018) (stating that the determination of whether a class is fail-safe is premature on a motion to strike). The Court finds these more recent cases persuasive. The motion to strike the class allegations is DENIED as premature. For the reasons set forth above, Defendant’s motion to dismiss, stay, and/or strike (Doc. 32) is DENIED. | Dated: _ December 27, 2022 Cerin | Tower TED STATES DISTRICT JUDGE 13