Brum et al v. MarketSource, Inc. et al

Filing 23

ORDER signed by District Judge John A. Mendez on 10/26/17 GRANTING defendants' 18 Motion to Strike; Plaintiffs' allegations concerning the drug testing and paperwork are ORDERED STRICKEN from the Second Amended Complaint. Because Plaintiffs have already had an opportunity to amend the Complaint and further amendment appears futile, leave to amend is not permitted. Defendants shall file their Answer to the Second Amended Complaint within 20 days. (Benson, A.)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 13 JENNIFER BRUM and MICHAEL CAMERO, individually, and on behalf of other members of the general public similarly situated, 14 17 18 19 2:17-cv-241-JAM-EFB ORDER GRANTING DEFENDANTS’ MOTION TO STIKE Plaintiffs, 15 16 No. v. MARKETSOURCE, INC. WHICH WILL DO BUSINESS IN CALIFORNIA AS MARYLAND MARKETSOURCE, INC., a Maryland corporation; ALLEGIS GROUP, INC., a Maryland corporation; and DOES 1 through 10, inclusive, 20 Defendants. 21 22 Jennifer Brum (“Brum”) and Michael Camero (“Camero”) 23 (collectively “Plaintiffs”) have sued MarketSource, Inc., and 24 Allegis Group, Inc., (collectively “Defendants”) for various 25 California Labor Code and Unfair Competition Law violations. 1 26 27 28 1 This motion was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearing was scheduled for October 3, 2017. 1 1 After Defendants partially prevailed on a motion to dismiss, 2 Plaintiffs filed their Second Amended Complaint (“SAC”). 3 Defendants now seek to strike allegations from the SAC. 4 reasons set forth below, Defendants motion is GRANTED in its 5 entirety. For the 6 7 I. 8 9 FACTUAL AND PROCEDURAL BACKGROUND Defendants provide retail sales personnel to dozens of Target Mobile kiosks throughout California. SAC ¶ 26. Brum 10 worked as a “Wireless Team Lead” at several Target stores in and 11 around Stockton, California. 12 “Target Mobile Manager” at two Target stores in San Diego, 13 California. 14 SAC ¶ 3. Camero worked as a SAC ¶ 4. Plaintiffs allege Defendants violated overtime, meal, and 15 rest period laws and did not properly report wage statements. 16 SAC at ¶¶ 13-19, 21-27. 17 required all new hires to take drug tests as a condition of 18 employment without paying them for the time to travel to and from 19 the drug testing facility and take the test, and without 20 reimbursing them for travel expenses. 21 Plaintiffs also contend Defendants SAC ¶ 29. Plaintiffs seek to represent one class and one subclass, but 22 have not yet filed a motion for class certification. 23 21. 24 SAC ¶¶ 20, The Court previously granted in part and denied in part 25 Defendants’ motion to dismiss. Order, ECF No. 15. 26 struck Plaintiffs’ drug testing allegations—with leave to amend— 27 because Plaintiffs’ opposition to the motion relied on facts 28 Plaintiffs failed to allege in the FAC. 2 The Court Order at 7, 13. 1 Plaintiffs timely filed their SAC. 2 move to strike the amended allegations concerning compensation 3 and reimbursement for the drug testing. 4 move to strike Plaintiffs’ new allegations regarding compensation 5 for time spent filling out paperwork. ECF No. 16. Now, Defendants Additionally, Defendants 6 7 II. OPINION 8 A. Judicial Notice 9 Defendants seek judicial notice of an email dated January 8, 10 2017, Exh. A, ECF No. 18-3, pursuant to either Federal Rule of 11 Civil Procedure 201(b) or the doctrine of incorporation by 12 reference. 13 Under Rule 201, the Court may judicially notice a fact that 14 is not subject to reasonable dispute because it can be accurately 15 and readily determined from sources whose accuracy cannot 16 reasonably be questioned. 17 of the January 8th email do not meet these parameters and are not 18 an appropriate subject for judicial notice under Rule 201. 19 Fed. R. Evid. 201(b)(2). The contents Under the doctrine of incorporation by reference, the court 20 “may consider evidence on which the complaint ‘necessarily 21 relies’ if: (1) the complaint refers to the document; (2) the 22 document is central to the plaintiff’s claim; and (3) no party 23 questions the authenticity of the copy attached to the [motion].” 24 Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006). 25 The January 8th email does appear central to Plaintiffs’ 26 claim and is referenced, though not explicitly, in the SAC. 27 support of their liability theory, Plaintiffs allege—and argue in 28 their opposition to the motion to strike, see Opp’n at 5–9—that 3 In 1 Defendants exercised control over the circumstances surrounding 2 the drug testing. 3 testing instructions to the new hires, which Plaintiffs refer to 4 in paragraphs 29 and 74 of the SAC. 5 the email is not relevant to their claims is disingenuous, as 6 Plaintiffs’ opposition to the motion to strike largely relies on 7 the control Defendants allegedly exerted over the drug testing, 8 as shown by the email. The January 8th email communicates the drug Plaintiffs’ argument that 9 Defendants argue that Plaintiffs cannot contest the email’s 10 authenticity because Plaintiffs produced the email in discovery. 11 See RFJN at 2. 12 2. 13 pointing out that the email has not been authenticated by 14 deposition or affidavit. 15 correct. While the email appears to be authentic and Defendants 16 could easily lay a foundation for its authenticity, no such 17 foundation exists in Defendants’ motion papers. 18 Court may not take judicial notice of this email over Plaintiffs’ 19 opposition in deciding the present motion. Plaintiffs admit they did so. Opp’n to RFJN at Plaintiffs do, however, contest the email’s authenticity, Opp’n to RFJN at 2–3. Plaintiffs are Therefore, the 20 B. Analysis 21 Under Federal Rule of Civil Procedure 12(f), the Court may 22 strike from a pleading any redundant, immaterial, impertinent, or 23 scandalous matter. 24 “Motions to strike are generally regarded with disfavor[.]” 25 In re Wal-Mart Stores, Inc. Wage & Hour Litig., 505 F. Supp. 2d 26 609, 614 (N.D. Cal. 2007). 27 granted unless it is clear that the matter to be stricken could 28 have no possible bearing on the subject matter of the “A motion to strike should not be 4 1 litigation.” 2 F. Supp. 2d 1157, 1159 (E.D. Cal. 2010) (citation omitted). 3 deciding the motion, the Court must view the pleadings in the 4 light most favorable to the nonmoving party. 5 Natural Foods, Inc., No. 2:15-cv-953-JAM-EFB, 2015 WL 5601362, at 6 *1 (E.D. Cal. Sep. 22, 2015). 7 8 9 1. Contreras, ex rel. Contreras v. Cnty. of Glenn, 725 In Baker v. United Reimbursement For Drug Testing Defendants’ motion turns on whether Plaintiffs sufficiently allege they were employees when they underwent Defendants’ 10 required drug testing. 11 time, then those allegations are immaterial to their claims. 12 Defendants argue Plaintiffs were merely “prospective employees” 13 at testing time and Defendants therefore had no obligation to pay 14 them wages or reimburse mileage. 15 the SAC’s allegations demonstrate “the drug-tested individuals 16 were engaged, thereby creating a common-law employment 17 relationship, and were under Defendants’ control when they were 18 tested.” 19 in paragraph 29 of the SAC as establishing the employment 20 relationship between the parties: 21 22 23 24 Opp’n at 5. If Plaintiffs were not employees at that Mot. at 6–7. Plaintiffs argue They specifically point to the allegation Upon being hired, Defendants send newly hired employees a system-generated e-mail notification with “Welcome to Market Source” in the subject line that provides, “Congratulations on your new position with the MarketSource team!” The e-mail further provides “Now that you have accepted your position, I’ve created a timeline of what you can expect in the next several days leading up to your official start date with us.” 25 26 SAC at ¶ 29. 27 argument that they had accepted employment with Defendants. 28 These new allegations tend to support Plaintiffs’ But, Plaintiffs’ allegations contain their Achilles heel: 5 1 “Defendants require that all new hires undergo mandatory drug 2 testing as a condition of employment.” 3 added); see also ¶ 74. 4 Next Steps” the new hires complete prior to their “official start 5 date.” 6 conditioned upon completing a drug test, thereby undermining the 7 “engagement” theory central to their opposition. 8 to explain how an employment agreement formed between the parties 9 prior to fulfillment of this condition. 10 11 SAC at ¶ 74. SAC at ¶ 29 (emphasis The drug testing is one of the “Immediate Plaintiffs thus admit their employment was Plaintiffs fail Plaintiffs’ allegations do not establish such an agreement. This conclusion does not terminate the inquiry. “In 12 determining the nature of the employment relationship, a primary 13 inquiry of California courts is whether the alleged employer 14 exercised or had the right to exercise control over the alleged 15 employee.” 16 Supp. 2d 1058, 1063 (C.D. Cal. 2014). 17 no authority suggesting that employers must compensate 18 prospective employees for time spent in pre-employment 19 activities. 20 Defendants exercised a sufficient degree of control over the 21 prospective employees’ drug testing to establish an employment 22 relationship at that time. 23 Gunawan v. Howroyd-Wright Employment Agency, 997 F. Defendants assert there is But, this argument begs the question of whether The Gunawan decision is instructive on this issue. In that 24 case, Ms. Gunawan applied for employment with a temporary 25 staffing agency (“KForce”) and, after interviewing with KForce, 26 went out for an interview that KForce arranged with an outside 27 employer (“TRG”). 28 scheduled the interview, modified Ms. Gunawan’s resume, and Gunawan, 997 F. Supp. 2d at 1061. 6 KForce 1 communicated with TRG. 2 Gunawan for a temporary assignment, she completed employment 3 paperwork with KForce and became a KForce employee. 4 Gunawan later sued KForce, seeking compensation for the time she 5 spent interviewing with TRG, “prior to the commencement of her 6 formal employment relationship with KForce.” 7 noting the dearth of authority on this question, the Gunawan 8 Court grappled with how to apply the California Supreme Court’s 9 Martinez test to determine whether KForce was Ms. Gunawan’s 10 11 12 13 14 15 16 17 18 19 20 21 Id. After TRG decided to hire Ms. Id. Ms. Id. at 1062. After employer during the interview. It wrote: Martinez expounded on the definition of “employer” under California’s wage and hour laws, holding that “to employ” has three alternative definitions: “(a) to exercise control over the wages, hours or working conditions, or (b) to suffer or permit to work, or (c) to engage, thereby creating a common law employment relationship.” The court’s test, however, is not easily translated outside of the factual context in which it was developed . . . [it is most applicable in answering] whether the defendants in the case could be considered joint employers under the law. There was no question whether the employees in Martinez were employees, nor whether they had performed compensable work. . . . Here, in the context of determining whether an individual is an employee at all, the test is less directly applicable. . . . At its core, the Martinez test suggests that an employer is an individual that has the ability to control the terms and conditions of an individual’s work, or that has such control over an individual so as to have the ability to permit or prevent that individual from working. 22 23 Id. at 1064 (quoting Martinez v. Combs, 49 Cal.4th 35 (2010)). 24 The Gunawan court concluded that Ms. Gunawan was not under 25 KForce’s control at the time of the interview because she could 26 have opted not to attend the TRG interview without precluding 27 other assignments through KForce, and because KForce had little 28 control over the substance of the interview itself. 7 Id. at 1063. 1 The facts that KForce scheduled the interview and controlled 2 communications between the parties did not persuade the court: 3 “That she chose [] to utilize KForce’s service does not transform 4 Ms. Gunawan from an applicant for employment to an employee.” 5 Id. at 1064. 6 Plaintiffs argue that Gunawan is in the minority, but 7 Plaintiffs’ alternative cases are not persuasive. First, the 8 court in Sullivan v. Kelly Services, another staffing agency 9 case, did not consider whether or not the plaintiff was an 10 employee, but, instead, considered whether the time she spent 11 interviewing with outside employers was compensable work time. 12 No. C 08-3893 CW, 2009 WL 3353300 (N.D. Cal. Oct. 16, 2009). 13 Sullivan court stated Ms. Sullivan was the defendant’s employee 14 in the factual background section of the order. 15 (“Plaintiff’s employment relationship with Defendant began on 16 March 16, 2006, which was her first day of her first temporary 17 assignment with Defendant’s customer[.]”). 18 decision is not instructive. 19 hand, did analyze the plaintiff’s employee status when he went 20 out on interviews. 21 Inc., No. 14-CV-01788-JST, 2014 WL 4365074 (N.D. Cal. Sep. 3, 22 2014). 23 determined the defendant exercised sufficient control over the 24 interview process to establish an employer-employee relationship. 25 Id. at *4–6. 26 this Court. 27 “new hire” orientation, signed a form acknowledging that he and 28 the defendant were entering into an employment arrangement, and The Id. at *1 Thus, the Sullivan The Betancourt court, on the other Betancourt v. Advantage Human Resourcing Finding Sullivan more persuasive than Gurawan, it The Betancourt opinion, too, is of limited value to First, the plaintiff in that case had completed a 8 1 completed traditional employment paperwork with defendant prior 2 to interviewing with outside employers. 3 “prospective” employee versus employee issue was not framed so 4 poignantly for that court. 5 bewilderingly cites Sullivan as “holding an employment 6 relationship was created” between the plaintiff and defendant in 7 that case; but, the Sullivan opinion contains no such holding 8 because the employment relationship was not in dispute. 9 *3. 10 11 Id. at *1. Hence, the Second, the Betancourt court Id. at In light of these deficiencies, Sullivan and Betancourt have little sway over this Court’s analysis. Each of the above-cited cases is distinguishable from the 12 present circumstances. 13 interviews and work assignments and controls all communications 14 with outside employers exhibits considerably more control over 15 its (prospective) employees than an employer who conditions an 16 offer of employment on completion of a drug test. 17 question here is whether the facts that a prospective employer 18 picked the time, date, and location for, and the scope of, a drug 19 test required in order for one to commence employment exhibit 20 enough control over a prospective employee to establish an 21 employment relationship. 22 support for this seemingly novel proposition. 23 finds these allegations insufficient to establish an employment 24 relationship at the time of Plaintiffs’ drug testing. 25 26 2. A staffing agency that manages one’s The narrow Plaintiff has not offered any legal The Court thus Reimbursement Under the UCL Plaintiffs seek relief under California’s Unfair Competition 27 Law (“UCL”) for Defendants’ failure “to pay the costs of 28 mandatory physical examinations and drug testing in violation of 9 1 California Labor Code section 222.5.” 2 the statute, an employer may not “require any prospective 3 employee or applicant for employment to pay[] any fee for, or 4 cost of, any pre-employment medical or physical examination taken 5 as a condition of employment[.]” 6 SAC at ¶ 121(e). Under Cal. Labor Code § 222.5. Defendants argue that, based on the plain language of the 7 statute, “cost” does not include compensation for the time 8 involved in taking the exam, traveling to and from the exam, or 9 for travel mileage. Mot. at 11. Plaintiffs respond that there 10 is no case law supporting Defendants’ interpretation and suggests 11 the more reasonable interpretation of “cost” would accord with 12 Labor Code section 2802, which requires reimbursement for “all 13 necessary expenditures or losses incurred by the employee in 14 direct consequence of the discharge of his or her duties, or of 15 his or her obedience to the directions of the employer[.]” 16 at 10. 17 reimbursement for mileage under section 2802. 18 Vasquez v. Franklin Mgmt. Real Estate Fund, Inc., 222 Cal. App. 19 4th 819 (2013)). 20 Opp’n According to Plaintiffs, an employee may recover Defendants have the stronger argument. Id. (citing The two Labor Code 21 sections have substantially distinct wording and the Court will 22 not read the sections to carry the same meaning without authority 23 militating such an interpretation. 24 to “cost” and section 2082 includes “all necessary expenditures 25 or losses incurred” supports a narrower reading of the statute. 26 Accordingly, Plaintiffs’ drug testing allegations cannot support 27 their UCL claim. 28 10 That section 222.5 is limited 1 2 3. Paperwork Allegations Defendants argue that Plaintiffs’ allegations in support of 3 their new theory of liability should be stricken because the 4 Court’s previous order only granted leave to amend the drug 5 testing reimbursement allegations. 6 respond that Defendants read the Court’s order too narrowly, 7 contending that “leave to amend was granted as they relate to the 8 causes of action regarding off-the-clock work such as drug 9 testing” and they could permissibly amend their allegations to 10 add this additional theory in support of their second cause of 11 action for unpaid minimum wages and eighth cause of action for 12 unlawful business practices. Mot. at 13. Plaintiffs Opp’n at 12. 13 The Court granted Defendants’ motion to strike Plaintiffs’ 14 allegations regarding reimbursement for drug testing with leave 15 to amend. 16 exceed the scope of the Court’s leave and are ordered stricken. 17 See Freeney v. Bank of Am. Corp., No. CV 15-02376 MMM (PJWx), 18 2015 WL 4366439 (C.D. Cal. July 16, 2015) (“Plaintiffs may not 19 plead additional claims, add additional parties, or add 20 allegations that are not intended to cure the specific defects 21 the court has noted. 22 scope of leave to amend granted by this order, the court will 23 strike the offending portions under Rule 12(f).”). 24 new allegations are stricken, the Court need not consider their 25 merit and will not do so at this time. See Order at 13:27–28. Plaintiffs’ new allegations Should any amended complaint exceed the Because these 26 C. 27 In their Reply, Defendants suggest that Plaintiffs used a 28 Sanctions condensed font to circumvent this Court’s Order re Filing 11 1 Requirements, ECF No. 2-2. 2 Plaintiffs’ filing. 3 12 point font with condensed character spacing (-0.2), though it 4 is not clear how many pages this saved Plaintiffs. 5 declines to issue sanctions at this time. 6 all memoranda submitted in this action shall conform to a 12 7 point font size and standard (zero) character spacing. Rep. at 1. The Court has reviewed It appears that Plaintiffs used a standard The Court Henceforth, however, 8 9 10 III. ORDER For the reasons set forth above, the Court GRANTS 11 Defendants’ Motion to Strike in its entirety. 12 allegations concerning the drug testing and paperwork are ORDERED 13 stricken from the Second Amended Complaint. 14 have already had an opportunity to amend the Complaint and 15 further amendment appears futile, leave to amend is not 16 permitted. 17 Amended Complaint within twenty days of this Order. 18 19 Plaintiffs’ Because Plaintiffs Defendants shall file their Answer to the Second IT IS SO ORDERED. Dated: October 26, 2017 20 21 22 23 24 25 26 27 28 12

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