Curtis Hamilton v. Genesis Logistics Inc et al

Filing 21

ORDER that the Motion to Dismiss or Strike Class Allegations and the Motion to Transfer are DENIED 15 by Judge Dean D. Pregerson . (lc) Modified on 6/20/2013. (lc).

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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CURTIS HAMILTON, an
individual, on behalf of
himself and all others
similarly situated,

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Plaintiff,
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v.
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GENESIS LOGISTICS, INC., a
Delaware corporation,

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Defendants.

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___________________________

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Case No. CV 13-01848 DDP (VBKx)
ORDER DENYING MOTION TO DISMISS
[Dkt. No. 15]

I. Background

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Defendant Genesis Logistics, Inc. ("Genesis") is a logistics

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and forwarding company incorporated in Delaware.

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Complaint ("FAC") ¶ 1.)

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California citizen, was employed by Genesis as a "Transportation

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Supervisor" in Fullerton, California.

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(First Amended

Plaintiff Curtis Hamilton ("Plaintiff"), a

(Id. ¶ 4 and Ex. "A.")

Plaintiff alleges that while employed by Genesis, he was

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classified as an exempt employee and was paid a set salary.

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¶¶ 14, 15.) Plaintiff alleges that, as transportation supervisor,

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he had no authority to hire and fire other employees, nor did he

(Id.

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exercise discretion or independent judgment as part of his job.

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(Id. ¶ 15).

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the supervision was limited in scope and took up less than half of

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his work time.

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manual labor, such as moving inventory, loading trucks, cleaning,

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driving trucks, and filing forms related to delivery.

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Plaintiff alleges that Genesis intentionally misclassified him as

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an exempt employee in order to avoid paying him overtime and missed

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meal periods despite Genesis's ability to compensate him.

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He oversaw the work of subordinate truck drivers, but

(Id.)

In addition, he was required to perform

(Id.)

(Id. ¶¶

59-60.)
Plaintiff worked on varying shifts and typically worked more

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than eight hours a day and/or more than forty hours per week as an

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employee of Genesis.

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misclassification, Genesis failed to pay Plaintiff overtime

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compensation for the hours he worked in excess of eight hours in a

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workday and/or forty hours in a workweek.

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addition, Plaintiff alleges that while he was employed by Genesis,

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Genesis did not provide him with any written statement showing the

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total hours he had worked or the wages he had earned for each

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payment of wages.

(Id. ¶ 16.)

However, because of the

(Id. ¶ 41.)

In

(Id. ¶¶ 17, 45.)

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Plaintiff further alleges that Genesis failed to provide

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uninterrupted meal periods because, as a transportation supervisor,

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Plaintiff was required to be always "on call."

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Genesis failed to compensate Plaintiff for the missed meal breaks.

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(Id. ¶ 50.)

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prevented from taking legally mandated rest breaks, and Genesis did

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not compensate Plaintiff for the missed rest breaks.

(Id. ¶¶ 18, 50.)

Plaintiff also alleges that he did not receive or was

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(Id. ¶¶ 19,

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55.)

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Transportation Supervisors.

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Plaintiff asserts these claims on behalf of at least 150
(Id. ¶ 25.)

On August 2, 2012, Plaintiff gave written notice of the

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alleged violation to Genesis via certified United States mail

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pursuant to Labor Code § 2699.3.

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Plaintiff provided written notice to the California Labor and

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Workforce Development Agency ("LWDA") via certified mail .

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Exh. B.)

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(Id. Exh. A.)

On the same day,

(Id.

Genesis claims that it was not aware that Plaintiff had

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contacted the LWDA because Plaintiff did not provide it with a copy

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of the cover letter that was sent to the LWDA.

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written notice did not mention that Plaintiff intended to pursue

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the claims in a class representative capacity.

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II. Legal Standard

(Mot. at 1-2.)

The

(Id. at 2.)

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A complaint will survive a motion to dismiss under Rule

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12(b)(6) when it contains "sufficient factual matter, accepted as

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true, ‘to state a claim to relief that is plausible on its face.’"

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Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009) (quoting Bell Atl.

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Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

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Rule 12(b)(6) motion, a court must "accept as true all allegations

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of material fact and must construe those facts in the light most

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favorable to the plaintiff."

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(9th Cir. 2000).

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factual allegations," it must offer "more than an unadorned,

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the-defendant-unlawfully-harmed-me accusation."

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678.

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statement of a legal conclusion "are not entitled to the assumption

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of truth."

When considering a

Resnick v. Hayes, 213 F.3d 443, 447

Although a complaint need not include "detailed

Iqbal, 556 U.S. at

Conclusory allegations or allegations that are no more than a

Id. at 679.

In other words, a pleading that merely
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offers "labels and conclusions," a "formulaic recitation of the

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elements," or "naked assertions" will not be sufficient to state a

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claim upon which relief can be granted.

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internal quotation marks omitted).

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Id. at 678 (citations and

"When there are well-pleaded factual allegations, a court

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should assume their veracity and then determine whether they

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plausibly give rise to an entitlement of relief." Id. at 664.

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Plaintiffs must allege "plausible grounds to infer" that their

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claims rise "above the speculative level."

Twombly, 550 U.S. at

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555-56. "Determining whether a complaint states a plausible claim

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for relief" is a "context-specific" task, requiring “the reviewing

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court to draw on its judicial experience and common sense."

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556 U.S. at 679.

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III. Discussion

Iqbal,

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A. Motion to Dismiss or Strike Class Allegations

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Defendant asserts that Plaintiff’s class claims should be

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dismissed or stricken because they are based on conclusory

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assertions rather than foundational facts that support his position

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that a class action is appropriate.

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that Plaintiff has adequately pleaded facts sufficient to state a

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claim under Rule 23 of the Federal Rules of Civil Procedure.

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The court disagrees and finds

1. Numerosity
The first requirement of Rule 23(a) is that “the class is so

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numerous that joinder of all members is impracticable.”

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Civ. P. Rule 23(a).

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joinder of all members is impracticable, courts have held that the

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plaintiff need not show that it would be impossible to join every

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class member. Additionally, there is no specific number cut-off, as

Fed. R.

“In determining whether under Rule 23(a)(1),

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the specific facts of each case may be examined. Courts have not

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required evidence of specific class size or identity of class

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members to satisfy the requirements of Rule 23(a)(1).”

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v. Celestica Corp., 253 F.R.D. 562, 569 (C.D. Cal. 2008)(internal

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citations and quotation marks omitted).

Cervantez

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Plaintiff alleges that “due to the number [of] employees as

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well as facilities,” he “believes that the total number of Class

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members is at least . . . over 150.”

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not challenge this figure with any evidence.

(FAC ¶ 25.)

Defendant does

The only potential

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challenge to numerosity that the court can discover is the

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Defendant’s description of the putative class as “broad and

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amorphous” because it incorporates individuals whether they “worked

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before or after Plaintiff, at different facilities from Plaintiff .

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. ., under different management, and with varying job duties and

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responsibilities.”

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go to numerosity but to commonality.

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Plaintiff has stated a claim for numerosity.

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(Mot. at 7.)

However, these assertions do not
The court finds that

2. Commonality
Rule 23(a) also requires that “there are questions of law or

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fact common to the class.”

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questions of fact and law need not be common to satisfy the rule.

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The existence of shared legal issues with divergent factual

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predicates is sufficient.”

Hanlon v. Chrysler Corp., 150 F.3d

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1011, 1019 (9th Cir. 1998).

Indeed, “[e]ven a single [common]

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question will do,” so long as that question has the capacity to

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generate a common answer “apt to drive the resolution of the

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litigation.”

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2556 (2011) (internal quotation marks omitted).

Fed. R. Civ. P. Rule 23(a).

“All

Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541, 2551,

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Defendant asserts that Plaintiff has failed to allege “that

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there are common business practices or factual patterns that the

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members of the Classes each experienced.”

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quotation marks and alterations omitted).)

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Plaintiff has not presented “a single factual or foundational

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allegation . . . establishing . . . the commonality element of Rule

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23.”

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common questions of law and fact, including whether the member of

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the Class were misclassified, whether Defendant failed to provide

(Reply at 4.)

(Mot. at 8 (internal
According to Defendant,

However, Plaintiff alleges nine separate

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meal periods and rest periods, and whether Defendant failed to

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provide accurate itemized wage statements.

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respect to the misclassification question, for instance, Plaintiff

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pleaded that he and the other putative class members “had no

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authority to hire and fire other employees, nor did they exercise

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discretion or independent judgment as part of their jobs.

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oversaw the work of subordinate truck drivers, but such supervision

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was limited in scope and took up less than half of any shift.

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Moreover, Class Plaintiff and the other members of the Classes were

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required to perform manual labor as part of the production of

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Defendants, including but not limited to, moving inventory, loading

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trucks, cleaning, driving trucks, and filing forms related to

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delivery.”

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(FAC ¶ 32.)

With

They

(FAC ¶ 15.)

The court finds that the allegations including those in ¶ 15

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are factual allegations sufficient to state a claim for

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commonality.

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were misclassified as supervisors, for instance, is a question

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common to the class that is “apt to drive the resolution of the

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litigation.”

The question of whether Transportation Supervisors

Dukes, 131 S.Ct. at 2556.
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3. Typicality

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Rule 23(a) also requires Plaintiff to demonstrate that “the

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claims or defenses of the representative parties are typical of the

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claims or defenses of the class.”

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“[R]epresentative claims are ‘typical’ if they are reasonably co-

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extensive with those of absent class members; they need not be

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substantially identical.”

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typical, a class representative “must be part of the class and

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possess the same interest and suffer the same injury as the class

Fed. R. Civ. P. 23(a).

Hanlon, 150 F.3d at 1020.

To be

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members.”

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156 (1982)(internal citation and quotation marks omitted).

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General Tel. Co. of Southwest v. Falcon, 457 U.S. 147,

Defendant argues that “Plaintiff does not allege in the FAC

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that he has worked at any other facility operated by Genesis, that

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he has any knowledge regarding the individuals working as

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‘Transportation Supervisors in facilities other than Fullerton, or

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that he has knowledge of any aspect of the employment conditions of

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any ‘Transportation Supervisors’ employed by Genesis before and

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after his brief tenure with Genesis.”

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discussed above with respect to commonality, Plaintiff has alleged

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the common injury of misclassification, denial of meal breaks, etc.

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These allegations are sufficient to state a claim for Plaintiff’s

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typicality, since the common question of law or fact regarding

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misclassification, for instance, would result in the injury, shared

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with the class, of undercompensation and the interest, shared with

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the class, of obtaining compensation.

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(Reply at 5.)

However, as

The court finds that Plaintiff’s allegations are sufficient to

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state a claim for typicality.

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4. Adequacy
Defendant does not appear to challenge Plaintiff’s pleading of

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the adequacy of representation, and the court finds that

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Plaintiff’s representations in ¶ 31 of the FAC are sufficient to

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state a claim for adequacy.

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B. PAGA Claim
1. Notice to Genesis
One of the requirements under the Private Attorneys General

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Act of 2004 (“PAGA”) before a civil action may commence is “[t]he

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aggrieved employee or representative shall give written notice by

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certified mail to the Labor and Workforce Development Agency and

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the employer of the specific provisions of this code alleged to

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have been violated, including the facts and theories to support the

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alleged violation.”

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asserts that Plaintiff’s PAGA claim should be dismissed because

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“the notice indicating that Plaintiff intended to pursue a PAGA

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action was sent solely to the [Labor and Workforce Development

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Agency (“LDWA”)], with a demand letter related to Plaintiff’s

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individual claims sent to Genesis.”

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Cal. Labor Code 2699.3(a)(1).

Defendant

(Mot. at 11.)

Plaintiff responds that the two letters were virtually

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identical, and though the letter to Genesis did not directly

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reference the letter to the LDWA, it did note in the second

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sentence of the letter that it was contacting Defendant “[i]n

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accordance with Labor Code § 2699,” which concerns civil penalties

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to be assessed and collected by the LWDA in actions brought by

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aggrieved employees.

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(FAC, Exh. A.)

Defendant does not address this reference to the Labor Code.
Defendant instead maintains that Plaintiff was required to send
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Defendant the letter submitted to the LWDA.

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that the purpose of such a letter is to put the employer on notice

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that the LWDA has been contacted, which is important because the

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employer then has 33 days to correct any deficiencies identified in

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the notice.

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Defendant contends

See Cal. Labor Code § 2699.3(c)(1).

Defendant cites no cases, nor has the court discovered any,

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that support this interpretation of the requirements of §

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2699.3(a)(1).

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which explains that the amendment to PAGA requiring administrative

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exhaustion was intended to “‘give employers an opportunity to cure

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less serious violations’” and to “‘protect[] businesses from

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shakedown lawsuits, yet ensurin[ing] that labor laws protecting

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California’s working men and women are enforced.’”

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Superior Court, 142 Cal.App.4th 330, 339 (quoting Sen. Rules Com.,

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Off. of Sen. Floor Analyses, analysis of Sen. Bill No. 1809 (2003-

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2004 Reg. Sess), as amended July 27, pp.5-6).

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that the purpose of the administrative exhaustion requirement was

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to require notice to the employer so the employer could rectify the

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violation without litigation.

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the requirement but instead whether the employer, Defendant, in

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fact received sufficient notice of the violation through

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Plaintiff’s letter, which was virtually identical to the letter

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sent to the LDWA and which referenced the Labor Code section

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concerning PAGA violations and the requirement of notifying the

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LDWA.

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Instead, Defendant cites the Senate Floor Analysis

Dunlap v.

The court agrees

The issue here is not the purpose of

The court finds that Plaintiff has met the exhaustion

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requirement.

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an identical letter to the employer and the LDWA, to refer to the

Nothing in the statute requires that Plaintiff send

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letter sent to the LDWA in the letter to the employer, or to inform

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the employer of its obligations under § 2699.3(c)(2)(A).

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administrative exhaustion requirement is intended to protect

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businesses by putting them on notice of violations such that they

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can remedy those violations without litigation; the letter

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Plaintiff sent to Defendant states the violations and indicates

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which sections of the Labor Code Defendant allegedly violated.

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court declines to read into § 2699.3 any additional requirements

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that would nullify Plaintiff’s good faith attempt to

The

The

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administratively exhaust its PAGA claims by meeting the statute’s

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requirements.

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2. “Representative” PAGA Action
Defendant also asserts that Plaintiff’s attempt to

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administratively exhaust his PAGA claim was deficient because he

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did not indicate that he was bringing claims on a representative

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basis, but only discussed his individual claims.

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Defendant asserts, Plaintiff did not provide “adequate notice of

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the ‘facts and theories’ supporting his allegations of Labor Code

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violations, such that his PAGA claim is barred as a matter of law.”

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(Reply at 8.)

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theories” requirement of the notice letter, but none of them

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addresses whether the failure to discuss class claims constitutes a

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failure to provide notice of “facts and theories.”

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Hobart Serv., ED CV 11-1600 PSG, 2013 WL 228501 (C.D. Cal. Jan. 22,

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2013)(“the closest that Plaintiff comes to making a factual

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allegation in the letter is to allege a failure ‘to provide off-

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duty meal periods and to pay compensation for work without off-duty

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meal periods to its California employees.’”) and

Because of this,

Defendant cites cases elaborating the “facts and

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See Alcantar v.

Soto v.

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Castlerock Farming & Transp. Inc., CIV-F-09-0701 AWI, 2012 WL

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1292519 (E.D. Cal. Apr. 16, 2012) reconsideration denied, CIV-F-09-

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0701 AWI, 2013 WL 1222055 (E.D. Cal. Mar. 25, 2013)(quoting Archila

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v. KFC U.S. Properties, Inc., 420 Fed. Appx. 667, 669 (9th Cir.

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2011) (“The demand letter merely lists several California Labor

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Code provisions Archila alleges KFC violated and requests that KFC

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conduct an investigation.”).

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An action to recover civil penalties under PAGA is
"fundamentally a law enforcement action designed to protect the

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public and not to benefit private parties."

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Court, 46 Cal. 4th 969, 986 (2009) (quoting People v. Pacific Land

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Research Co., 20 Cal. 3d 10, 17 (1977)).

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the PAGA claim as an individual claim, but "as the proxy or agent

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of the state's labor law enforcement agencies."

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Inc., 202 Cal.App.4th 1119, 1123 (2011)(quoting Arias, 46 Cal. 4th

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at 986.

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employee to litigate his or her claims, but requires an aggrieved

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employee on behalf of herself or himself and other current or

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former employees to enforce violations of the Labor Code by their

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employers."

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Supp. 2d 1152, 1161 (C.D. Cal. 2011) (internal citations and

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quotation marks omitted) (emphasis in original).

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PAGA statute awards civil penalties to the aggrieved employees as a

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whole.

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contemplates a common group action with civil penalties being

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awarded to the entire group.

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Arias v. Superior

A plaintiff may not bring

Reyes v. Macy's,

"[T]he PAGA statute does not enable a single aggrieved

Urbino v. Orkin Services of California, Inc., 882 F.

Id.; Cal. Lab. Code § 2699(i).

In addition, the

The statute therefore

Urbino, 882 F. Supp. 2d at 1161.

Further, the judgment in a PAGA action is binding "not only on
the named employee plaintiff but also on government agencies and
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any aggrieved employee not a party to the proceeding."

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Cal. 4th at 985.

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representative claim, it follows that plaintiffs need not indicate

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that they are bringing the PAGA claims on a representative basis.

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See Cardenas v. McLane FoodServices, Inc., 796 F. Supp. 2d 1246,

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1259-60 (C.D. Cal. 2011) (holding that although plaintiffs are

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required under PAGA to give notice of the "facts and theories to

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support the alleged violation," plaintiffs are not required to name

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all aggrieved employees.

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Arias, 46

As such, because a PAGA claim is necessarily a

"Indeed, bringing claims on behalf of

other aggrieved employees is the very premise of PAGA.").

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The court finds that in order to exhaust administrative

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remedies, a plaintiff need not indicate that he intends to file a

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class action.

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C. Motion to Transfer

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Defendant moves for the action to be transferred to the

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Southern Division of the Central District of California.

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U.S.C. § 1404(a), “[f]or the convenience of the parties and

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witnesses, in the interest of justice, a district court may

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transfer any civil action to any other district or division where

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it might have been brought.”

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not dispute, that the action could have been brought in the

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Southern Division.

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parties and witnesses is such that the court should disrupt

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Plaintiff’s choice of forum.

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Under 28

The court agrees, and Plaintiff does

The issue is whether the convenience of the

“[U]nless the balance of factors is strongly in favor of the

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defendants, the plaintiff's choice of forum should rarely be

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disturbed.”

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1317 (9th Cir. 1985) (citing Gulf Oil Corp. v. Gilbert, 330 U.S.

Sec. Investor Prot. Corp. v. Vigman, 764 F.2d 1309,

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501, 508 (1947).)

In putative class actions, a plaintiff’s choice

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of forum is accorded less weight.

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739 (9th Cir. 1987).

Lou v. Belzberg, 834 F.2d 730,

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A motion to transfer venue under § 1404(a) requires the court

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to weigh multiple factors in its determination whether transfer is

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appropriate in a particular case.

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Corp., 487 U.S. 22, 29 (1988).

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location where the relevant agreements were negotiated and

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executed, (2) the state that is most familiar with the governing

Stewart Org., Inc. v. Ricoh

The court may consider: "(1) the

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law, (3) the plaintiff's choice of forum, (4) the respective

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parties' contacts with the forum, (5) the contacts relating to the

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plaintiff's cause of action in the chosen forum, (6) the

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differences in the costs of litigation in the two forums, (7) the

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availability of compulsory process to compel attendance of

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unwilling non-party witnesses, and (8) the ease of access to

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sources of proof."

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498-99 (9th Cir. 2000).

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Jones v. GNC Franchising, Inc., 211 F.3d 495,

"[V]enue is primarily a matter of convenience of litigants and

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witnesses."

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387 U.S. 556, 560 (1967).

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is often the most important factor in determining whether a

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transfer under § 1404 is appropriate.

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Group, LLC v. Your Store Online, LLC, 666 F. Supp. 2d 1109, 1132

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(C.D. Cal. 2009).

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Denver & R. G. W. R. Co. v. Bhd. of R. R. Trainmen,
The convenience of non-party witnesses

See also Allstar Mktg.

Defendant argues that the action should be transferred to the

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Southern Division because the majority of the evidence and

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witnesses in this case is located in Orange County, and because

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Defendant does not have operations in Los Angeles.
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Plaintiff

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presents a declaration indicating that the difference in distance

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from Defendant’s Fullerton facility to the Central District

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courthouse was 23.34 miles, with an estimated 30 minutes of travel

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time.

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Facility to the Southern Division courthouse, in contrast, was at

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least 11.78 miles.

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difference of approximately 12 miles means that the increase in the

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level of convenience for witnesses is de minimis and insufficient

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to disrupt the Plaintiff’s choice of forum, even when giving that

(Decl. Kashfian ¶ 2.)

The distance from the Fullerton

(Id. ¶ 4.)1

The court finds that this

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choice less weight because the action is a class action.

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that Defendant has no operations in Los Angeles, the neighboring

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county, likewise has only minimal significance and does not change

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the court’s finding.

The fact

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Defendant objects to this declaration as irrelevant, lacking
foundation and personal knowledge, improper opinion of a lay
witness, hearsay, and a violation of the best evidence rule.
(Evidentiary Objections to the Decl. of Robert Kashfian . . . .).
These objections are OVERRULED. Federal Rule of Evidence 201(b)(2)
allows the court to take judicial notice of a fact that is “capable
of accurate and ready determination by resort to sources whose
accuracy cannot reasonably be questioned.” The court finds that it
can take judicial notice of the distance between Defendant’s
address in Fullerton, which Defendant does not dispute, and the
courthouses in Los Angeles and Santa Ana. In contrast, the court
finds that it cannot take judicial notice of the travel time to the
courthouses, since traffic in Los Angeles and Orange Counties is
too notoriously unpredictable to be “capable of accurate and ready
determination” by any source yet to be discovered.
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IV. Conclusion
For the reasons stated above, the Motion to Dismiss or Strike
Class Allegations and the Motion to Transfer are DENIED.

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IT IS SO ORDERED.

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Dated: June 20, 2013
DEAN D. PREGERSON
United States District Judge

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