Bravo v. On Delivery Services, LLC et al

Filing 27

ORDER by Judge Edward M. Chen Granting 22 Defendant's Motion to Dismiss. (emcsec, COURT STAFF) (Filed on 5/25/2018)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ALFREDO BRAVO,

Case No. 18-cv-01913-EMC

Plaintiff,

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ORDER GRANTING DEFENDANT’S
MOTION TO DISMISS

v.

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ON DELIVERY SERVICES, LLC, et al.,

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United States District Court
Northern District of California

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Defendants.

Docket No. 22

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Plaintiff Alfredo Bravo has brought what is largely a wage-and-hour case against multiple

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defendants, namely, On Delivery Services, LLC; Jorge Alfaro; Frisco Bay Transport, Inc.;

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Dynamex; XPO Logistics Supply Chain, Inc.; Amazon.com Services, Inc.; and Mattress Firm,

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Inc.1 Some of the defendants have not appeared in the case as of yet. Some defendants have

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appeared and answered. Currently pending before the Court is one defendant‟s – Amazon‟s –

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motion to dismiss and strike.
The Court held a hearing on Amazon‟s motion to strike on May 24, 2018. This order

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memorializes the Court‟s rulings made at the hearing and provide additional analysis, as

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necessary.

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I.

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1.

DISCUSSION

With respect to all claims, Mr. Bravo alleges that all defendants, including

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Amazon, are joint employers. However, that allegation is completely conclusory. There are no

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factual allegations in the complaint regarding the nature of the alleged joint relationship – e.g., did

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Amazon hire one of the other defendants to make deliveries for it and did that defendant then hire

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Mr. Bravo voluntarily dismissed two defendants (North American Logistics Group LLC and
IKEA U.S. West, Inc.) in April 2018. See Docket No. 20 (notice of voluntary dismissal).

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Mr. Bravo as a driver‟s helper? Moreover, there are no factual allegations in the complaint that

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make the joint employment relationship plausible, see Ashcroft v. Iqbal, 556 U.S. 662 (2009); Bell

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Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) – e.g., did Amazon exert the requisite control

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over Mr. Bravo to be deemed an employer, let alone a joint employer? Because of these

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deficiencies, all claims pled in the complaint are properly dismissed. If Mr. Bravo amends (as the

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Court permits as provided below), he must allege specific facts establishing a plausible claim that

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Amazon was his joint employer.

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2.

With respect to claim 1, failure to pay “straight” wages, it is predicated on two

theories: (a) that Mr. Bravo was paid by shift, not by hour, such that “at time[s] [he] was paid less
than minimum wage,” Compl. ¶ 23, and (b) that he was not provided a meal break during which

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United States District Court
Northern District of California

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he was relieved of all duties and he was not paid for that time. See Compl. ¶¶ 30, 47. The Court

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addresses the second theory as part of claim 4 below.

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As for the first theory, it is subject to dismissal because it is lacking in specificity. See

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Landers v. Quality Communications, Inc., No. 12-15890, 2015 U.S. App. LEXIS 1290, at *19-20

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(9th Cir. Jan. 26, 2015) (amending opinion at 771 F.3d 638 (9th Cir. 2014)). In Landers, for

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example, the plaintiff alleged an overtime violation based on the fact that the defendants used a de

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facto “piecework no overtime” system, meaning that employees were paid a certain amount per

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piece. The Ninth Circuit held that this allegation was insufficient to support an overtime claim;

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the complaint lacked detail regarding a given workweek when the plaintiff worked in excess of

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forty hours and was not paid overtime for that specific workweek or was not paid minimum

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wages. See id. There is no principled reason to treat payment per piece (as in Landers) differently

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from payment per shift (as in the instant case), and Mr. Bravo does not allege, e.g., that, in a given

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workweek, he was not paid minimum wages because of how the shift system worked.

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3.

Claim 2 for failure to pay overtime is likewise subject to dismissal under Landers.

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Notably, the Landers court endorsed the reasoning of a Third Circuit opinion, Davis v. Abington

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Memorial Hospital, 765 F.3d 236 (3d Cir. 2014). As explained in Landers, each plaintiff in Davis

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“alleged that „he or she typically worked shifts totaling between thirty-two and forty hours per

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week and further allege[d] that he or she frequently worked extra time.‟” Landers, 2015 U.S. App.
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LEXIS 1290, at *14. The Third Circuit held that the allegations were not sufficient to state a

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plausible claim for relief because “none of the plaintiffs alleged that the extra hours were in fact

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worked during a typical forty-hour workweek.” Id. (emphasis added). While “a plaintiff need not

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identify precisely the dates and times she worked overtime,” there must still be “[a]n allegation

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that a plaintiff typically worked a forty-hour workweek, and worked uncompensated hours during

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a particular forty-hour workweek.” Id. (emphasis added).

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As reflected by the above, Landers establishes that the invocation of a term such as

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“regularly,” “typically,” and “frequently” is not enough by itself to establish the plausibility of a

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claim. See, e.g., Perez v. Wells Fargo & Co., 75 F. Supp. 3d 1184, 1191 (N.D. Cal. 2014)
(Hamilton, J.) (stating that, “[u]nder Landers, allegations such as those asserted in the FAC – that

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United States District Court
Northern District of California

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certain plaintiffs „regularly‟ or „regularly and consistently‟ worked more than 40 hours per week –

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fall short of the Twombly/Iqbal standard and are thus insufficient to state a claim for denial of

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overtime compensation”); Tan v. Grubhub, Inc., 171 F. Supp. 3d 998, 1007 (N.D. Cal. 2016)

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(Corley, J.) (stating that “Landers clarifies that mere conclusory allegations that class members

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„regularly‟ or „regularly and consistently‟ worked more than 40 hours per week – without any

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further detail – fall short of Twombly/Iqbal”). “Instead, a plaintiff must identify facts that give rise

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to a plausible inference that he was not paid minimum wage or overtime during at least one work

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week.” Id. at 1008.

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4.

Claim 3, titled “liquidated damages,” is derivative of the minimum wage and

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overtime wages. See Compl. ¶ 62. Accordingly, because claims 1 and 2 are subject to dismissal,

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claim 3 is also subject to dismissal.

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5.

Claim 4 for failure to provide meal periods is dismissed because, as Amazon

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argues, Mr. Bravo has failed to specify how Amazon and/or Defendants failed to provide him with

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meal breaks in a manner that establishes liability under Brinker Restaurant Corp. v. Superior

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Court, 53 Cal. 4th 1004 (2012). Mr. Bravo essentially parrots the elements of a meal break claim

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without providing any factual allegations in support.

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6.

Claim 5, which asks for waiting time penalties, is another derivative claim (based

on claims 1, 2, and 4). As the underlying claims are dismissed, claim 5 is also dismissed.
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The Court also notes that a claim for waiting time penalties requires a willful violation.

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See Amaral v. Cintas Corp. No. 2, 163 Cal. App. 4th 1157, 1202 (2008) (discussing a prior case

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where there was evidence that the “employer was in fact aware that its employees were not being

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fully compensated for their time”) (emphasis omitted); Johnson v. Q.E.D. Envtl. Sys., No. 16-cv-

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01454-WHO, 2016 U.S. Dist. LEXIS 120900, at *12-13 (N.D. Cal. Sep. 7, 2016) (stating that

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plaintiff‟s “allegations of willful conduct are sufficiently pleaded because it is at least plausible

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that QED knew its employees were taking lunch periods of less than 30 minutes”); Johnson v.

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Sunrise Senior Living Mgmt., No. CV 16-00443-BRO (RAOx), 2016 U.S. Dist. LEXIS 189479, at

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*23 (C.D. Cal. May 5, 2016) (stating that “Plaintiff also plausibly alleges that Defendant's conduct
was willful, as she claims that Defendant was aware of its employees' inability to receive their

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United States District Court
Northern District of California

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entire wages due at least as of February 2014”).

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7.

Claim 6 alleges a violation of California Labor Code §§ 204 and 210. Amazon

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moves to dismiss the claim because, inter alia, there is no private right of action under § 204 and

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the civil penalty under § 210 may be recovered by the California Labor Commissioner only. The

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Court dismisses the claim as Mr. Bravo concedes that it should be dismissed.

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8.

Claim 7 for failure to provide accurate wage statements is another derivative claim

subject to dismissal.
However, the Court rejects Amazon‟s argument that there is no viable § 226 claim where a

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plaintiff alleges that “her wage statement was inaccurate because she should have received

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overtime and meal break premiums and these unpaid premiums were not reflected in her wage

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statement,” Mot. at 15. Although Amazon cites authority in support of its position – e.g., Jones v.

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Spherion Staffing LLC, No. LA CV11-06462 JAK (JCx), 2012 U.S. Dist. LEXIS 112396 (C.D.

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Cal. Aug. 7, 2012) – not all courts have agreed with Jones. In fact, courts in this District have

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largely rejected Jones and/or its reasoning. The Court finds the decisions from this District more

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persuasive than Jones. See, e.g., In re Autozone, Inc., No. 3:10-md-02159-CRB, 2016 U.S. Dist.

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LEXIS 105746 (N.D. Cal. Aug. 10, 2016); Parson v. Golden State FC, LLC, No. 16-cv-00405-

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JST, 2016 U.S. Dist. LEXIS 58299 (N.D. Cal. May 2, 2016); Brewer v. Gen. Nutrition Corp., No.

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11-CV-3587 YGR, 2015 U.S. Dist. LEXIS 114860 (N.D. Cal. Aug. 27, 2015); Bellinghausen v.
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Tractor Supply Company, No: C-13-02377 JSC, 2014 U.S. Dist. LEXIS 13212 (N.D. Cal. Feb 3,

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2014).

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Claim 8, which alleges a violation of § 17200, is another derivative claim and, as

such, is subject to dismissal.

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10.

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dismissed.

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Claim 9 is one for statutory prejudgment interest. As another derivative claim, it is

Claim 11 is failure to reimburse business expenses. This claim is dismissed

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because, as Amazon argues, Mr. Bravo “does not allege any facts that would make plausible that

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he was working as an employee of Amazon when he incurred cell phone expenses, let alone any
facts showing that Amazon was aware [he] incurred necessary business expenses, but nonetheless

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United States District Court
Northern District of California

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failed to reimburse him.” Mot. at 16 (emphasis in original). He does not allege specific facts

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establishing Amazon‟s liability under Stuart v. RadioShack Corp., 641 F. Supp. 2d 901, 904 (N.D.

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Cal. 2009) (stating that, “for purposes of § 2802, before an employer‟s duty to reimburse is

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triggered, it must either know or have reason to know that the employee has incurred an expense[;]

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[o]nce the employer has such knowledge, then it has the duty to exercise due diligence and take

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any and all reasonable steps to ensure that the employee is paid for the expense”).

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12.

Claim 12, negligence, is dismissed because the complaint does not establish

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Amazon owed a duty of case. Even if the Court assumes that Amazon had a duty of care, see

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Waste Mgmt., Inc. v. Superior Court, 119 Cal. App. 4th 105, 110 (2004) (stating that “[e]mployers

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have a nondelegable duty to furnish their employees with a safe place to work”); see also Cal.

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Lab. Code § 6400(a) (providing that “[e]very employer shall furnish employment and a place of

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employment that is safe and healthful for the employees therein”), Mr. Bravo has improperly

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“lumped” all defendants as being responsible for the truck with the allegedly defective brakes.

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13.

Finally, the Court dismisses the prayer for injunctive relief for failure to allege

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standing. To the extent Mr. Bravo asks for injunctive relief to address the (alleged) wage-and-

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hour violations, he is no longer an (alleged) employee of any defendant. To the extent Mr. Bravo

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asks for injunctive relief to address his claim of negligence, see Opp‟n at 10 (arguing that

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“Plaintiff is a member of the public and uses the roadways of California and as such has standing
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to seek injunctive relief”), standing is still a problem. “[T]he Supreme Court has indicated that, at

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least when injunctive relief is sought, litigants must adduce a „credible threat‟ of recurrent injury.”

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La Duke v. Nelson, 762 F.2d 1318, 1323 (9th Cir. 1985) (citing, inter alia, Los Angeles v. Lyons,

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461 U.S. 95 (1983)); see also Davidson v. Kimberly-Clark Corp., 873 F.3d 1103, 1113 (9th Cir.

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2017) (noting that, “[f]or injunctive relief, which is a prospective remedy, the threat of injury must

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be „actual and imminent, not conjectural or hypothetical‟” – i.e., “the „threatened injury must be

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certainly impending to constitute injury in fact‟ and „allegations of possible future injury are not

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sufficient‟”; adding that, “[w]here standing is premised entirely on the threat of repeated injury, a

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plaintiff must show „a sufficient likelihood that he will again be wronged in a similar way‟”). The

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risk of future injury as alleged is conjectural.
II.

United States District Court
Northern District of California

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CONCLUSION

For the foregoing reasons, the Court dismisses all claims asserted in the complaint against

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Amazon.2 Mr. Bravo has leave to amend to correct the above deficiencies, if he can do so in good

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faith. The amended complaint shall be filed within thirty (30) days of the date of this order.
Upon the filing of the amended complaint, Mr. Bravo shall promptly serve the amended

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complaint on all defendants (other than those that have already been voluntarily dismissed by Mr.

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Bravo) within sixty (60) days of the date of this order.

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This order disposes of Docket No. 22.

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IT IS SO ORDERED.

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Dated: May 25, 2018

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______________________________________
EDWARD M. CHEN
United States District Judge

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The Court does not address the merits of Claim 10 (failure to provide records) as the claim was
not asserted against Amazon.
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