Su v. SL One Global, Inc.

• Court: District Court, E.D. California
• Decided: August 11, 2022
• Docket: 2:22-cv-00583
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 MARTIN J. WALSH, Secretary of No. 2:22-cv-00583 WBS DB Labor, United States Department 13 of Labor, 14 Plaintiff, ORDER RE: MOTION TO DISMISS 15 v. 16 SL ONE GLOBAL, INC., dba VIVA SUPERMARKET, a California 17 Corporation; SMF GLOBAL, INC., dba VIVA SUPERMARKET, a 18 California Corporation; NARI TRADING, INC., dba VIVA 19 SUPERMARKET; UNI FOODS, INC., dba VIVA SUPERMARKET, a 20 California Corporation; SEAN LOLOEE, an individual, and as 21 owner and managing agent of the Corporate Defendants; and KARLA 22 MONTOYA, an individual, and managing agent of the Corporate 23 Defendants, 24 Defendants. 25 26 ----oo0oo---- 27 Plaintiff Martin J. Walsh, in his capacity as Secretary 28 of the United States Department of Labor, brought this action 1 against defendants SL One Global, SMF Global, Nari Trading, and 2 Uni Foods, all of which allegedly do business as Viva Supermarket 3 (the “corporate defendants”); Sean Loloee; and Karla Montoya 4 alleging various ongoing violations of federal labor laws at 5 grocery stores operated by defendants. Specifically, plaintiff 6 alleges (1) interference with employees’ rights under the Fair 7 Labor Standards Act (“FLSA”), 29 U.S.C. § 215(a)(3); 8 (2) obstruction of the Secretary’s investigation under the FLSA, 9 29 U.S.C. § 211(a); (3) violation of minimum wage requirements 10 under the FLSA, 29 U.S.C. §§ 206, 215(a)(2); (4) violation of 11 overtime requirements under the FLSA, 29 U.S.C. §§ 207, 12 215(a)(2); (5) violation of recordkeeping requirements under the 13 FLSA, 29 U.S.C. §§ 211(c), 215(a)(5); (6) violation of child 14 labor requirements under the FLSA, 29 U.S.C. §§ 212, 215(a)(4); 15 and (7) violation of paid sick leave requirements under the 16 Emergency Paid Sick Leave Act, Pub. L. No. 116-127, 134 Stat. 178 17 §§ 5101-5111 (2020). (Compl. (Docket No. 1).) 18 Defendants now move to dismiss Count III (minimum wage) 19 and Count IV (overtime) of plaintiff’s Complaint as against 20 defendant SL One Global to the extent they allege wage violations 21 before February 20, 2020, and as against all other defendants to 22 the extent they allege violations before April 1, 2019; all 23 claims against defendant Montoya; and plaintiff’s Count Six 24 (child labor) claims in their entirety. (Mot. (Docket No. 7).) 25 I. Factual and Procedural Background1 26 The Secretary of Labor is charged with enforcing the 27 1 All facts recited herein are as alleged in the 28 complaint except as otherwise noted. 1 FLSA’s requirements regarding employers’ labor practices. 2 (Compl. at ¶ 3.) Defendant Loloee owns and is managing agent of 3 the corporate defendants, each of which operates as a Viva 4 Supermarket location in Sacramento. (See id. at ¶¶ 4-12.) 5 Defendant Montoya is a General Manager and agent of the corporate 6 defendants. (Id. at ¶ 16.) 7 In 2009, the United States Department of Labor’s Wage 8 and Hour Division (the “WHD”) began an investigation into 9 Loloee’s and SL One Global’s wage and hour practices, covering a 10 period from November 10, 2008 to May 26, 2009. (Id. at ¶¶ 24- 11 25.) The WHD concluded Loloee and SL One Global had violated 12 multiple FLSA provisions, including minimum wage and child labor 13 provisions. (Id. at ¶ 25.) Loloee and SL One Global entered 14 into a settlement agreement with the WHD to pay back wages and to 15 pay civil penalties for the alleged child labor violations. (Id. 16 at ¶ 27.) 17 In 2020, the WHD began a second investigation into 18 Loloee’s and SL One Global’s wage and hour practices, covering a 19 period from February 20, 2018 to February 19, 2020 (the “Second 20 Investigation”). (Id. at ¶ 28.) The WHD concluded those 21 defendants had again violated multiple FLSA provisions, and it 22 and those defendants entered into a second settlement agreement 23 to pay back wages (the “Second Agreement”). (Id. at ¶¶ 29-31.) 24 As part of the Second Agreement, SL One Global and Loloee 25 represented that they were in full compliance with the FLSA and 26 would continue to comply going forward. (Id. at ¶ 32.) 27 Later in 2020, the WHD began a third investigation, 28 this time into the wage and hour practices of Loloee and all four 1 corporate defendants in this action (the “Third Investigation”). 2 (Id. at ¶¶ 33-34.) Plaintiff alleges defendants repeatedly 3 interfered with that investigation, including by directing 4 employees to lie to or not speak with investigators, hiding 5 employees from investigators, and threatening employees with 6 deportation and other immigration consequences if they 7 cooperated. (Id. at ¶ 35.) During the Third Investigation, the 8 WHD also received information that Loloee and Montoya coerced 9 employees who had received back wages pursuant to the Second 10 Agreement to return those payments. (Id. at ¶ 37.) 11 Plaintiff alleges that, based on its investigations, 12 defendants have failed to pay required minimum wages and overtime 13 premiums or to retain accurate records since at least October 23, 14 2017; have employed minors in hazardous occupations since at 15 least October 25, 2019; have employed minors to work more hours 16 than is permitted since at least September 14, 2019; and failed 17 to provide required paid sick leave to employees between April 1, 18 2020 and December 30, 2020, or to maintain accurate records of 19 paid sick leave requests and determinations. (Id. at ¶¶ 38-63.) 20 Plaintiff filed this action on April 1, 2022, seeking injunctive 21 relief, back wages, and liquidated damages. (Compl.) 22 II. Discussion 23 Federal Rule of Civil Procedure 12(b)(6) allows for 24 dismissal when the plaintiff’s complaint fails to state a claim 25 upon which relief can be granted. See Fed. R. Civ. P. 12(b)(6). 26 “A Rule 12(b)(6) motion tests the legal sufficiency of a claim.” 27 Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). The inquiry 28 before the court is whether, accepting the allegations in the 1 complaint as true and drawing all reasonable inferences in the 2 plaintiff’s favor, the complaint has alleged “sufficient facts 3 . . . to support a cognizable legal theory,” id., and thereby 4 stated “a claim to relief that is plausible on its face,” Bell 5 Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). 6 Courts are not, however, “required to accept as true 7 allegations that are merely conclusory, unwarranted deductions of 8 fact, or unreasonable inferences.” Sprewell v. Golden State 9 Warriors, 266 F.3d 979, 988 (9th Cir. 2001); see Bell Atl. Corp., 10 550 U.S. at 555. Accordingly, “for a complaint to survive a 11 motion to dismiss, the non-conclusory ‘factual content,’ and 12 reasonable inferences from that content, must be plausibly 13 suggestive of a claim entitling the plaintiff to relief.” Moss 14 v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) (quoting 15 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). 16 A. Minimum Wage and Overtime Claims 17 1. Settlement Agreement 18 Defendants first argue that the claims in Counts III 19 and IV, alleging violations of the FLSA’s minimum wage and 20 overtime provisions, are precluded by the Second Agreement to the 21 extent they assert violations against SL One Global between 22 February 20, 2018 and February 19, 2020. (Mot. at 10-13.) 23 Defendants point to the language of the Second Agreement,2 which 24 2 Although generally “a district court may not consider 25 any material beyond the pleadings in ruling on a Rule 12(b)(6) motion,” Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 26 2001), this rule does not apply to “documents incorporated by 27 reference in the complaint, or matters of judicial notice,” United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003). The 28 Second Agreement and various provisions therein are referenced 1 “covered [SL One Global]’s operations from 02/20/2018 to 2 02/19/2020” and provides that SL One Global “agree[d] to pay the 3 back wages due the employees in question” for that period, in 4 arguing that SL One Global is released from liability for alleged 5 violations covering that period. (Docket No. 11-1 at 4; see Mot. 6 at 11-13.) 7 Plaintiff does not argue that the Second Agreement did 8 not, at least at the time it was executed, release SL One Global 9 from liability for minimum wage and overtime payments owed for 10 the period covered by the Second Investigation, or that the back 11 wages were never paid. (See Opp. at 4 (Docket No. 11).) Rather, 12 as plaintiff’s opposition brief indicates, and as counsel for 13 plaintiff seemed to confirm at oral argument, plaintiff’s 14 position is that by requiring employees to return the back wages 15 they received under the Second Agreement, SL One Global breached 16 or voided the Second Agreement, such that it no longer releases 17 SL One Global from FLSA liability for the same alleged 18 violations. (See id. (“To the extent that Defendants coerced 19 employees to kickback the wages distributed pursuant to the 20 Agreement, these claims are not ‘resolved,’ as Defendants aver. 21 SL One Global has not ‘bought its peace’ if it charged it back to 22 repeatedly in the Complaint and thus may be considered 23 incorporated by reference. (See Compl. at ¶¶ 31-32, 37, 67, 76- 77.) 24 Accordingly, although defendants also seek judicial notice of the Second Agreement, (see Request for Judicial Notice 25 at ¶ 4 (Docket No. 7-2)), formal judicial notice thereof is unnecessary. Because consideration of the additional documents 26 that are the subject of defendants’ request for judicial notice 27 is unnecessary to the resolution of the instant motion, defendants’ request is denied. 28 1 the employees it owed in yet another violation of the FLSA.”) 2 (internal citation omitted).) 3 However, plaintiff identifies no provision of the 4 Agreement or any other authority to support the proposition that 5 coercing employees to return wages paid under the Agreement 6 somehow voids the Agreement, thereby allowing plaintiff to bring 7 a new suit to recover for the same violations it had already 8 settled. When asked at oral argument whether plaintiff’s claim 9 might instead be presented as one for breach of contract, counsel 10 for plaintiff reiterated that it is plaintiff’s intent to proceed 11 with the FLSA minimum wage and overtime violations. The court 12 expresses no opinion on whether the Secretary would be permitted 13 to proceed on a breach of contract theory, but because he has not 14 made clear how the alleged kickbacks voided the Second Agreement, 15 the Secretary has failed to rebut defendants’ showing that the 16 Agreement precludes plaintiff’s Count III and IV claims against 17 SL One Global for alleged violations from between February 20, 18 2018 and February 19, 2020. Therefore, to the extent those 19 claims assert violations against SL One Global for that period, 20 those claims will be dismissed. 21 2. Statute of Limitations 22 Defendants argue that plaintiff’s claims under Counts 23 III and IV are also barred as against all defendants to the 24 extent they allege violations from before April 1, 2019, based on 25 the applicable statute of limitations. (Mot. at 10, 13-16.) The 26 statute of limitations for FLSA actions for unpaid minimum wages 27 or overtime compensation is two years, or three years if the 28 violation is willful. 29 U.S.C. § 255(a); Scalia v. Emp. Sols. 1 Staffing Grp. LLC, 951 F.3d 1097, 1102 (9th Cir. 2020). “A new 2 cause of action accrues at each payday immediately following the 3 work period for which compensation is owed.” Dent v. Cox Comms. 4 Las Vegas, Inc., 502 F.3d 1141, 1144 (9th Cir. 2007) (citing 5 O’Donnell v. Vencor Inc., 466 F.3d 1104, 1113 (9th Cir. 2006)). 6 Accordingly, the statute of limitations for each claim begins to 7 run at that time. See id.; O’Donnell, 466 F.3d at 1113. 8 Because plaintiff’s Complaint was filed on April 1, 9 2022 and alleges defendants willfully violated the FLSA, (Compl. 10 at ¶¶ 72-73, 75), the statutory limitations period for 11 plaintiff’s minimum wage and overtime claims is three years. See 12 29 U.S.C. § 255(a). Accordingly, any claims alleging FLSA 13 violations from before April 1, 2019, are time barred, and unless 14 the statute is tolled must be dismissed.3 15 a. Equitable Tolling 16 A footnote in plaintiff’s opposition brief states that 17 plaintiff “also seeks equitable tolling of the applicable three- 18 year statute of limitations due to Defendants’ interference and 19 retaliation used to obscure violations from the Secretary.” 20 (Opp. at 5 n.2.) “Equitable tolling applies when the plaintiff 21 is prevented from asserting a claim by wrongful conduct on the 22 3 Ironically, plaintiff, who appears to argue that the 23 Second Agreement is void, relies upon a provision of that very agreement to argue that defendant has “waive[d] all rights and 24 defenses which may be available by virtue of statute of limitations.” (Docket No. 11-1 at 5.) As discussed above, 25 plaintiff has not shown that the Second Agreement is void, and because the court has concluded that the Second Agreement bars 26 plaintiff’s minimum wage and overtime claims against SL One 27 Global for the period from February 20, 2018 to February 19, 2020, whether the statute of limitations provides an additional 28 bar to those same claims is immaterial. 1 part of the defendant, or when extraordinary circumstances beyond 2 the plaintiff’s control made it impossible to file a claim on 3 time.” Stoll v. Runyon, 165 F.3d 1238, 1242 (9th Cir. 1999) 4 (citation omitted). 5 As counsel for plaintiff acknowledged at oral argument, 6 for equitable tolling to apply, there must be a causal 7 relationship between the employer’s alleged misconduct and the 8 plaintiff’s failure to file claims within the statutorily 9 required period. Although the relevant portions of the Complaint 10 do detail the ways in which defendants allegedly interfered with 11 the Third Investigation, there are no allegations indicating 12 which if any claims would have been brought within the statutory 13 period but for the interference or what particular period they 14 would cover. (See Compl. at ¶¶ 35-36, 44); Stoll 165 F.3d at 15 1242. Without this information, the court is unable to ascertain 16 whether the requisite causal relationship in fact exists, or to 17 which dates equitable tolling would apply if it is justified. 18 The court therefore declines to apply equitable tolling at this 19 time. 20 B. Defendant Montoya 21 Defendants also seek dismissal of Montoya as a 22 defendant in this action, arguing she cannot be considered an 23 employer within the meaning of the FLSA. (Mot. at 16-21.) The 24 FLSA provides that FLSA liability may be established against an 25 “employer,” which it defines as “any person acting directly or 26 indirectly in the interest of an employer in relation to an 27 employee.” 29 U.S.C. §§ 203(d), 216. 28 The Ninth Circuit has held “that the definition of 1 ‘employer’ under the FLSA is not limited by the common law 2 concept of ‘employer,’ but ‘is to be given an expansive 3 interpretation in order to effectuate the FLSA’s broad remedial 4 purposes.’” Boucher v. Shaw, 572 F.3d 1087, 1090 (9th Cir. 2009) 5 (quoting Lambert v. Ackerley, 180 F.3d 997, 1011-12 (9th Cir. 6 1999) (en banc)). “The determination of whether an employer- 7 employee relationship exists does not depend on ‘isolated factors 8 but rather upon the circumstances of the whole activity,’” the 9 “touchstone” of which “is the ‘economic reality’ of the 10 relationship.” Id. (first quoting Rutherford Food Corp. v. 11 McComb, 331 U.S. 722, 730 (1947), then quoting Goldberg v. 12 Whitaker House Coop. Inc., 366 U.S. 28, 33 (1961)). “Where an 13 individual exercises ‘control over the nature and structure of 14 the employment relationship,’ or ‘economic control’ over the 15 relationship, that individual is an employer within the meaning 16 of the Act, and is subject to liability.” Id. (quoting Lambert, 17 180 F.3d at 1012). 18 The allegations of Montoya’s control are not merely 19 conclusory. Although the Complaint does allege Montoya was the 20 corporate defendants’ “agent” and “acted directly or indirectly 21 in the interests of [the corporate defendants] in relation to 22 their employees,” allegations that track the legal standard, this 23 conclusion is supported by specific allegations that she was “the 24 General Manager” of the defendant businesses, “hir[ed], fir[ed], 25 [and] disciplin[ed] employees,” and “determin[ed] work schedules 26 and employment practices.” (Compl. at ¶¶ 16-17.) These 27 allegations go well beyond those the Ninth Circuit found to be 28 insufficient in Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677 (9th 1 Cir. 2009), upon which defendants rely, in which the plaintiffs’ 2 only allegation showing control over employees was the conclusory 3 allegation that the alleged employer “exercised control over 4 their day-to-day employment.” See id. at 683. 5 At a basic level, the title “General Manager” connotes 6 substantial authority. More importantly, performance of the 7 alleged responsibilities clearly constitutes an “exercise[ ] [of] 8 control over the nature and structure of the employment 9 relationship”; hiring and firing determines whether an individual 10 will become or remain an employee, and work schedules and 11 practices pertain directly to the structure of the employment. 12 Indeed, the Ninth Circuit has previously held that officers with 13 “the power to hire and fire employees; the power to determine 14 salaries; [and] the responsibility to maintain employment 15 records” are employers within the meaning of the FLSA. Lambert, 16 180 F.3d at 1012. 17 Defendants also suggest that to be an employer within 18 the meaning of the FLSA, an individual ordinarily must also have 19 “an ownership interest or an executive-level position” in the 20 defendant business. (See Mot. at 19.) They make no argument, 21 however, as to why Montoya’s alleged role as “General Manager” of 22 all four of the defendant businesses, each of which operates a 23 separate Viva Supermarket location, does not amount to an 24 executive-level position. Moreover, Ninth Circuit precedent 25 makes clear that an individual need not have any ownership 26 interest in a defendant business to be an employer within the 27 meaning of the FLSA. In Boucher, the court found that the 28 defendant business’s chief executive officer and its official 1 “responsible for handling labor and employment matters,” who had 2 a 70 percent and 30 percent investment ownership in the business 3 respectively, were employers. 572 F.3d at 1091. However, it 4 also found that the business’s chief financial officer, who “had 5 responsibility for supervision and oversight of the [business’s] 6 cash management” but had no ownership interest, was also an 7 employer. Id. 8 In light of these considerations, the court concludes 9 that the Complaint contains sufficient factual allegations to 10 establish at the pleading stage that Montoya is a “person acting 11 directly or indirectly in the interest of an employer in relation 12 to an employee” and therefore qualifies as an employer within the 13 meaning of the FLSA. The court therefore will not dismiss this 14 action as against her on this ground. 15 C. Child Labor Claims 16 Defendants next argue that the claims asserted in Count 17 VI, which seek injunctive relief pursuant to 29 U.S.C. § 217 for 18 violation of the FLSA’s child labor provisions, should be 19 dismissed under the primary jurisdiction doctrine. (Mot. at 21- 20 24.) “Primary jurisdiction . . . . is a prudential doctrine 21 under which courts may, under appropriate circumstances, 22 determine that the initial decisionmaking responsibility should 23 be performed by the relevant agency rather than the courts.” 24 Syntek Semiconductor Co., Ltd. V. Microchip Tech. Inc., 307 F.3d 25 775, 780 (9th Cir. 2002). “The doctrine of primary jurisdiction 26 is committed to the sound discretion of the court when 27 ‘protection of the integrity of a regulatory scheme dictates 28 preliminary resort to the agency which administers the scheme.’” 1 Id. at 781 (quoting United States v. Gen. Dynamics Corp., 828 2 F.2d 1356, 1362 (9th Cir. 1987)) (other citations omitted). 3 Factors to be considered in determining whether exercise of such 4 discretion is appropriate include “(1) the need to resolve an 5 issue that (2) has been placed by Congress within the 6 jurisdiction of an administrative body having regulatory 7 authority (3) pursuant to a statute that subjects an industry or 8 activity to a comprehensive regulatory authority that 9 (4) requires expertise or uniformity in administration.” Syntek, 10 307 F.3d at 781 (citing Gen. Dynamics, 828 F.2d at 1362). 11 Defendants point out that plaintiff has also assessed a 12 civil money penalty against defendants for alleged child labor 13 violations, that defendants have filed an exception to that 14 penalty, and that exception is currently under review by an 15 administrative law judge. (Mot. at 22.) FLSA regulations 16 provide that businesses against whom civil money penalties are 17 assessed may seek initial and appellate review of penalty 18 determinations through an administrative process prescribed by 19 those regulations. See 29 C.F.R. §§ 580.1-18. Defendants argue 20 that because, pursuant to those regulations, an administrative 21 law judge will determine whether they violated the FLSA’s child 22 labor provisions and whether they did so repeatedly or willfully 23 -- determinations that partly overlap with the determinations the 24 court would need to make in ruling on plaintiff’s request for 25 injunctive relief -- the potential for inconsistent rulings on 26 those issues makes exercise of primary jurisdiction appropriate. 27 (Mot. at 22-23.) 28 Multiple considerations, however, weigh against 1 exercise of primary jurisdiction here.4 First, as the Ninth 2 Circuit has explained, exercise of the doctrine is appropriate 3 where the same remedy is sought in both administrative and 4 judicial fora. See Syntek, 307 F.3d at 781. Here, however, the 5 civil money penalty currently subject to administrative review is 6 a form of relief entirely distinct from the injunction plaintiff 7 seeks here. Indeed, because the FLSA vests district courts with 8 sole jurisdiction to issue injunctive relief, see 29 U.S.C. § 9 217, plaintiff is unable to do so at the administrative level and 10 must do so in court. Although the FLSA regulations do appear 11 intended to allow “an administrative body to have the first word” 12 on the propriety of civil money penalties, Gen. Dynamics, 828 13 F.2d at 1362 (citing United States v. RCA, 358 U.S. 334, 339 14 (1959)), this intention appears confined to money penalties and 15 thus does not justify exercise of the primary jurisdiction 16 doctrine as to injunctive relief. 17 Second, although defendants cite the risk of 18 inconsistent rulings on whether defendants violated the relevant 19 child labor provisions in arguing the primary jurisdiction 20 doctrine applies, counsel for plaintiff has submitted a 21 declaration stating, under penalty of perjury, that once 22 4 Plaintiff argues defendants’ exception to the civil 23 money penalty is not actually pending before an administrative law judge because, although the exception has been filed, it has 24 not yet been referred to an administrative law judge for determination and therefore cannot support primary jurisdiction. 25 (Opp. at 8-9.) However, plaintiff provides no support for this argument, and indeed the Supreme Court has foreclosed it, 26 explaining that primary jurisdiction “comes into play when[ ] 27 . . . the judicial process is suspended pending referral . . . to the administrative body.” United States v. W. Pac. R.R. Co., 352 28 U.S. 59, 63-64 (1956) (emphasis added) (citation omitted). 1 defendants’ exception is referred to an administrative law judge 2 she “will seek a stay [of the administrative action] pending the 3 resolution of the district court litigation.” (Decl. of Hailey 4 McAllister at ¶ 6 (Docket No. 11-1).) If the review of 5 defendants’ exception is stayed until after this court considers 6 plaintiff’s request for injunctive relief, there will be no risk 7 of simultaneous proceedings addressing the child labor claims, 8 and no more risk of inconsistent rulings than there would be if 9 this action were stayed pursuant to the primary jurisdiction 10 doctrine. 11 Even assuming counsel does not honor that commitment, 12 however, or the request for a stay is denied, equitable concerns 13 outweigh the risk of inconsistent rulings in the circumstances of 14 this case. Plaintiff alleges significant violations of FLSA 15 provisions aimed at protecting children, including those 16 prohibiting employers from requiring children to use dangerous 17 machinery or perform other hazardous tasks, which plaintiff here 18 alleges amounts to “oppressive child labor” within the meaning of 19 the FLSA. (See Compl. at ¶¶ 85-86, 88 (citing 29 U.S.C. 20 § 212(c)).) To dismiss or stay plaintiff’s child labor claims 21 pending an administrative law judge’s review of the civil money 22 penalty, and a potential appeal thereof, would impermissibly 23 delay resolution of allegations potentially meriting injunctive 24 relief that would protect children from alleged ongoing safety 25 hazards. (See id. at ¶ 84.)5 26 5 Moreover, defendants do not argue that the 27 administrative law judge’s determination on the alleged child labor violations would have a preclusive effect on this court, 28 such that resolution at the administrative level would streamline nn ne nnn nnn ene nn OO ES I ND Nae

1 For the foregoing reasons, the court declines to 2 exercise its discretion to apply the primary jurisdiction 3 doctrine. Accordingly, defendants’ motion, to the extent it 4 seeks dismissal of plaintiff’s child labor claims, will be 5 denied. 6 IT IS THEREFORE ORDERED that defendants’ Motion to 7 Dismiss (Docket No. 7-1) be, and the same hereby is, GRANTED IN 8 PART and DENIED IN PART as follows: 9 e Count III (minimum wage) and Count IV (overtime) of 10 plaintiff's Complaint are DISMISSED as against 11 defendant SL One Global, to the extent that they allege 12 violations before February 19, 2020; 13 e Count III (minimum wage) and Count IV (overtime) of 14 plaintiff’s Complaint are DISMISSED as against all 15 other defendants, to the extent that they allege 16 violations before April 1, 2019; and 17 e The Motion is DENIED in all other respects. 18 Plaintiff has twenty days from the date of this Order to file a 19 first amended complaint, if plaintiff can do so consistent with 20 | this Order. . - 21 | Dated: August 10, 2022 atte A hh be WILLIAM B. SHUBB 22 UNITED STATES DISTRICT JUDGE 23 24 25 26 27 28 | proceedings on the child labor claims in this court. 16