Helm et al v. Alderwoods Group, Inc. et al

Filing 337

ORDER DENYING IN PART AND GRANTING IN PART DEFENDANT'S MOTION TO DISMISS, STRIKE AND REQUIRE A MORE DEFINITE STATEMENT (SI, COURT STAFF) (Filed on 11/15/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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WILLIAM HELM,

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United States District Court
For the Northern District of California

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No. C 08-01184 SI

Plaintiff,

ORDER DENYING IN PART AND
GRANTING IN PART DEFENDANT’S
MOTION TO DISMISS, STRIKE AND
REQUIRE A MORE DEFINITE
STATEMENT

v.
ALDERWOODS GROUP, INC.,
Defendant.

/

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Defendant’s motion to dismiss, strike and/or require a more definite statement of plaintiff Helm’s

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complaint is currently scheduled for hearing on November 18, 2011. Pursuant to Civil Local Rule

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7-1(b), the Court finds this matter appropriate for resolution without oral argument and hereby

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VACATES the hearing. Having considered the papers submitted, the Court hereby DENIES IN PART

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and GRANTS IN PART defendant’s motion.

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BACKGROUND

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The subject of this litigation is a wage and hour dispute brought by a former employee of

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Alderwoods Group, Inc. (“Alderwoods”), a provider of funerary services. This action originated with

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a complaint filed in the United States District Court for the Western District of Pennsylvania, Prise, et

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al. v. Alderwoods Group, Inc., et al., No. 06-1641. That complaint originally included both state law

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claims and federal claims brought under the Fair Labor Standards Act (“FLSA”). The district court in

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Prise declined to exercise supplemental jurisdiction over the state law claims, leaving only the FLSA

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claims. The dismissal of the state law claims resulted in the filing of a class action complaint in the

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Alameda County Superior Court on December 5, 2007, entitled Helm, et al. v. Alderwoods Group Inc.,

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et al., alleging state law wage and hour claims against Alderwoods.
On February 27, 2008, defendant removed the action to federal court, invoking this Court’s

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diversity jurisdiction under the Class Action Fairness Act (“CAFA”). See 28 U.S.C. § 1332(d).

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Defendant then filed a motion to dismiss. The Court granted the motion in part, dismissing plaintiffs’

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common law claims with leave to amend on July 29, 2009. Doc. No. 174 (“July 29th Order”). The

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Court dismissed because plaintiffs’ common law causes of action appeared to be duplicative of

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plaintiffs’ causes of action under the FLSA and the California labor code. Id. at 20-23. Plaintiffs were

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given leave to amend in order to provide some factual basis for their allegations that they are owed

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United States District Court
For the Northern District of California

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wages beyond those not paid in violation of the FLSA or the California Labor Code. Id. Plaintiffs then

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filed a second amended complaint (“SAC”) on August 14, 2009, which defendants answered on

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September 9, 2009. Plaintiffs second amended complaint included the same common law claims, which

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plaintiffs specified as not including claims covered by the FLSA or the California labor code violations

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alleged elsewhere in their complaint. See, e.g., SAC ¶¶ 65, 67.

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On December 29, 2009, the Court denied plaintiffs’ first motion for class certification. Shortly

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thereafter, defendant filed a motion to sever, which the Court denied as premature based on plaintiffs’

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intention to file a renewed motion for class certification. On March 9, 2011, the Court denied plaintiffs’

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renewed motion for class certification, and on July 18, 2011, the Court granted defendant’s renewed

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motion to sever, retaining jurisdiction but leaving only the individual claims of plaintiff William Helm

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(“Helm”) pending in this case. The Court ordered Helm to file a third amended complaint (“TAC”),

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which is now the operative version of the complaint, and which re-alleges state claims under both the

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California labor code and common law. Currently before the Court is defendant’s motion to dismiss

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certain portions of the TAC, to strike certain portions of the TAC, and to require a more definite

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statement.

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LEGAL STANDARD
I.

Motion to dismiss
Under Federal Rule of Civil Procedure 12(b)(6), a district court must dismiss a complaint if it
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fails to state a claim upon which relief can be granted. To survive a Rule 12(b)(6) motion to dismiss,

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the plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl.

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Corp. v. Twombly, 550 U.S. 544, 570 (2007). This “facial plausibility” standard requires the plaintiff

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to allege facts that add up to “more than a sheer possibility that a defendant has acted unlawfully.”

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Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). While courts do not require “heightened fact pleading

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of specifics,” a plaintiff must allege facts sufficient to “raise a right to relief above the speculative

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level.” Twombly, 550 U.S. at 544, 555. In deciding whether the plaintiff has stated a claim upon which

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relief can be granted, the court must assume that the plaintiff’s allegations are true and must draw all

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reasonable inferences in the plaintiff’s favor. See Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th

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United States District Court
For the Northern District of California

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Cir. 1987). However, the court is not required to accept as true “allegations that are merely conclusory,

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unwarranted deductions of fact, or unreasonable inferences.” In re Gilead Scis. Sec. Litig., 536 F.3d

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1049, 1055 (9th Cir. 2008).

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II.

Motion to strike

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Federal Rule of Civil Procedure 12(f) provides that a court may, on its own or on motion, strike

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from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.

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Fed. R. Civ. Pro. 12(f). Motions to strike are generally disfavored. Rosales v. Citibank, 133 F. Supp.

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2d 1177, 1180 (N.D. Cal. 2001). In most cases, a motion to strike should not be granted unless the

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matter to be stricken clearly could have no possible bearing on the subject of the litigation. Platte

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Anchor Bolt, Inc. v. IHI, Inc., 352 F. Supp. 2d 1048, 1057 (N.D. Cal. 2004). However, if a pleading is

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deficient, the Court may strike the pleading and require the non-moving party to submit an amended

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pleading which includes more specific allegations. See Williams v. California 1st Bank, 859 F.2d 664,

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665 (9th Cir. 1988) (noting district court’s granting of motion to strike affirmative defense and giving

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defendant leave to amend the defense as a counterclaim).

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III.

Motion to require a more definite statement

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Federal Rule of Civil Procedure 12(e) provides that a party may move for a more definite

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statement of a pleading that is so vague or ambiguous that the party cannot reasonably prepare a
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response. A Rule 12(e) motion should be considered in light of the liberal pleading standards of Rule

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8(a). See Bureerong v. Uvawas, 922 F. Supp. 1450, 1461 (C.D. Cal. 1996) (citing Sagan v. Apple

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Computer, Inc., 874 F. Supp. 1072, 1077 (C.D. Cal. 1994) (Motions for a more definite statement are

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viewed with disfavor and are rarely granted because of the minimal pleading requirements of the Federal

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Rules.). A Rule 12(e) motion should be granted when the complaint is so vague that the defendant

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cannot discern the nature of the plaintiff's claims and thus cannot frame a response. See Famolare, Inc.

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v. Edison Bros. Stores, Inc., 525 F. Supp. 940, 949 (E.D. Cal. 1981); Boxall v. Sequoia Union High Sch.

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Dist., 464 F. Supp. 1104, 1114 (N.D. Cal. 1979). If the complaint notifies the defendant of the substance

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of the plaintiff's claim, a 12(e) motion should not be granted. San Bernardino Pub. Employees Ass'n

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United States District Court
For the Northern District of California

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v. Stout, 946 F. Supp. 790, 804 (C.D. Cal. 1996) (A motion for a more definite statement is used to

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attack unintelligibility, not mere lack of detail, and a complaint is sufficient if it is specific enough to

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apprise the defendant of the substance of the claim asserted against him or her.).

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DISCUSSION

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Defendant claims that plaintiff’s common law claims are preempted by and duplicative of the

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claims alleged under the California labor code and the FLSA, in violation of the Court’s prior July 29th

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Order dismissing plaintiff’s common law claims. Motion at 6-10. In addition, defendant asks the Court

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to strike plaintiff’s claim for failure to furnish timely and accurate wage statements as barred by the

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statute of limitations and plaintiff’s failure to exhaust administrative remedies. Motion at 12. Defendant

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also asks the Court to strike plaintiff’s claims for fraud, deceit and misrepresentation, based on the

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plaintiff’s failure to plead the claims with sufficient particularity. Finally, defendant asks the Court to

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strike plaintiff’s prayer for non-statutory damages as immaterial and overly vague, and to strike

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plaintiff’s prayer for injunctive relief based on a lack of standing. Motion at 19, 20.

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In opposition, plaintiff contends that the TAC fulfills the requirements of the July 29th Order

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because it “specifically alleges the types of work [plaintiff] performed (i.e., on-call, community work,

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training) and the amount of uncompensated time that he is claiming for each type of work.” Opp’n at

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1. Thus, plaintiff alleges that the common law claims have been pled with sufficient particularity, and

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are not duplicative of any FLSA or California labor code claims because the “common law causes of
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action do not include overtime pay or wages due upon discharge/layoff/resignation” and plaintiff “is not

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seeking compensation for overtime wages recoverable under the FLSA.” Opp’n at 1-2. The Court will

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address each of defendant’s arguments in turn.

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I.

Common law claims
As discussed in greater detail in the July 29th Order, the California labor code created new

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obligations for employers regarding, inter alia, the provision of breaks, pay stubs and minimum wages,

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and thus common law claims premised on violations of these new obligations are preempted by the

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California labor code. See July 29th Order at 23 (citing Brewer v. Premier Gold Props., 168 Cal. App.

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United States District Court
For the Northern District of California

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4th 1243, 1252 (2008)). As a result, defendant prevailed on its prior motion to dismiss because plaintiffs

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did “not allege any specific wrongful conduct other than the alleged Labor Code violations” and thus

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the Court found plaintiffs’ common law claims preempted. Similarly, defendant prevailed on its prior

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motion to dismiss insofar as plaintiffs’ common-law causes of action were duplicative of the FLSA, and

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plaintiffs were granted leave to amend to “provide some factual basis for their allegation that they are

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owed wages beyond overtime.” July 29th Order at 23.

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Plaintiff’s TAC provides this factual basis, and thus defendant’s argument that plaintiff’s

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common law claims are duplicative and preempted fails. The Court agrees with plaintiff that the TAC

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“specifically alleges the types of work that he performed . . . and the amount of uncompensated time he

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is claiming for each type of work.” Opp’n at 1. For example, plaintiff alleges that he “handled

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approximately 10 phone call per month while working on-call . . . and plaintiff was not compensated

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for the time he spend handling phone calls while on-call.” TAC at ¶ 38. Plaintiff also alleges that he

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spent approximately 10 hours per month participating in Kiwanis club, and 16 hours per month

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participating in Knights of Columbus, and that he was not compensated for all community work

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performed. TAC at ¶¶ 41, 42. Plaintiff does not allege an overtime claim based on these facts; rather,

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plaintiff alleges that he was not compensated at all for this allegedly compensable labor. Therefore, the

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claims are not preempted by the statutorily created rights otherwise asserted.

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Accordingly, defendant’s motion is DENIED insofar as it requests the dismissal of all of

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plaintiff’s common law claims (Counts IV through XI), subject to the discussion below regarding
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specific claims alleged.

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II.

Failure to furnish timely and accurate wage statements

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As discussed in greater detail in the Court’s July 29th Order, plaintiff must allege compliance

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with certain administrative procedures for recovery of civil penalties under § 226.3. July 29th Order

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at 24. Plaintiff makes no such allegation, and does not specifically address this point in his opposition

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to defendant’s motion. Accordingly, defendant’s motion is GRANTED insofar as it requests the

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dismissal of plaintiff’s claim for failure to furnish timely and accurate wage statements (Count III).

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United States District Court
For the Northern District of California

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III.

Fraud, deceit and misrepresentation

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As the Court noted in its July 29th Order, common law claims of fraud must be pled with

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sufficient particularity. See Fed. R. Civ. P. 9(b) (“[I]n all averments of fraud . . . the circumstances

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constituting fraud . . . shall be stated with particularity.”). To state a claim for common law fraud under

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California law, plaintiff must allege “misrepresentation, knowledge of its falsity, intent to defraud,

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justifiable reliance and resulting damage.” Gil v. Bank of Am., N.A., 138 Cal. App. 4th 1371, 1381

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(2006). To state a claim for negligent misrepresentation, plaintiff must allege that defendant: (1) made

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a misrepresentation of a material fact; (2) without reasonable grounds for believing it to be true; (3) with

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intent to induce another’s reliance; and that plaintiff (4) was ignorant of the truth; (5) justifiably relied

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on the misrepresentation and (6) suffered damages. See B.L.M. v. Sabo & Deitsch, 55 Cal. App. 4th 823,

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834 (1997). The Court’s July 29th order dismissed plaintiff’s common law claims sounding in fraud

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with leave to amend, asking plaintiff to “allege some other factual basis for their fraud claims, including

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facts demonstrating that defendants knew the statements were false when they made them.”

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Plaintiff’s TAC fails to provide this factual basis, and thus defendant’s argument that plaintiff’s

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fraud, deceit and misrepresentation claims are insufficiently pled succeeds. In the TAC, as the basis for

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its fraud claim, plaintiff alleges that defendants knew or had reasonable grounds for believing the falsity

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of the following statement in its policy manuals: “all non-exempt employees will be compensated for

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all hours worked.” TAC at ¶ 91. As the factual basis for this fraud claim, plaintiff alleges that

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defendant “was experienced in Human Resources issues . . . maintained Human Resources functions
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and employees, conducted Human Resources training, and periodically reviewed its Human Resources

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policies for legal compliance.” Id. at ¶ 93. Here, the Court agrees with defendant that under the

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heightened pleading standard for claims sounding in fraud, these facts do not demonstrate “that

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defendants knew that the statements were false when they made them,” as required by this Court’s July

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29th Order.

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Accordingly, defendant’s motion is GRANTED insofar as it requests the dismissal of plaintiff’s

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claims for fraud, deceit and misrepresentation (Count VI and VII). The Court dismisses plaintiff’s sixth

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and seventh cause of action without leave to amend because plaintiff has failed to fulfill the Court’s

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prior July 29th order.

United States District Court
For the Northern District of California

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IV.

Non-statutory damages

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Defendant contends that plaintiff is only entitled to those remedies provided by California Labor

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Code, because the remedies provided for statutory violations are exclusive. Motion at 20. However,

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since the Court has denied defendant’s request to dismiss plaintiff’s common law claims, this argument

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is no longer persuasive. As a result, any determination as to plaintiff’s available remedies is premature.

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The Court will determine the appropriate remedies in due course, upon resolution of plaintiff’s statutory

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and common law claims. Accordingly, defendant’s motion is DENIED insofar as it requests that the

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Court strike plaintiff’s request for non-statutory damages.

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V.

Injunctive relief

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A former employee does not have standing to seek injunctive relief for any of the violations of

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his former employer because he cannot demonstrate a “real or immediate threat of irreparable injury”

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from the employment practices of his former employer. Milligan v. Am. Airlines, Inc., 327 F. App'x

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694, 696 (9th Cir. 2009) (citing Clark v. City of Lakewood, 259 F.3d 996, 1007 (9th Cir. 2001)).

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Plaintiff, as a former employee of defendant, does not have standing to seek injunctive relief for the

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alleged continued violations of defendant. Accordingly, defendant’s motion is GRANTED insofar as

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it requests that the Court strike plaintiff’s request for injunctive relief.

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CONCLUSION

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For the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART defendant’s

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motion. Plaintiffs third, sixth, and seventh causes of action are DISMISSED without leave to amend.

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Plaintiff’s claim for injunctive relief is also DISMISSED.

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Docket No. 328.

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IT IS SO ORDERED.

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Dated: November 15, 2011
SUSAN ILLSTON
United States District Judge

United States District Court
For the Northern District of California

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