Gallardo et al v. AT&T Mobility LLC

Filing 30

ORDER by Judge Claudia Wilken DENYING DEFENDANTS #22 MOTION TO DISMISS OR STRIKE. (ndr, COURT STAFF) (Filed on 3/29/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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GEORGE GALLARDO, CARLOS BARRAGAN,
KYLE BINNS, CARLOS CRUZ, JENNIFER
DE WITT, HECTOR RODRIQUEZ, DENISE
ROMAN, individually and on behalf
of all other similarly situated,
Plaintiffs,

United States District Court
For the Northern District of California

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No. C 11-4749 CW
ORDER DENYING
DEFENDANT’S MOTION
TO DISMISS OR
STRIKE (Docket No.
22)

v.
AT&T MOBILITY, LLC,
Defendant.

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________________________________/

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Defendant AT&T Mobility, LLC has filed a motion to dismiss

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this action and to strike allegations that the complaint is

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brought on behalf of other unnamed individuals because Plaintiffs

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have not satisfied the requirements of Federal Rule of Civil

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Procedure 23.

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was decided on the papers.

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papers, the Court DENIES Defendant’s motion to dismiss or strike.

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Plaintiffs have filed an opposition.

The motion

Having considered all of the parties’

BACKGROUND
The facts set forth herein are those alleged in Plaintiffs’

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complaint and in the documents of which Defendant has requested

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judicial notice, without objection from Plaintiffs.

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Plaintiffs and the workers they seek to represent are current

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and former Retail Sales Consultants (RSCs) for Defendant who work

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or have worked in one or more of the AT&T Mobility retail stores

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throughout California.

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of Defendant’s decision to remove seats from the sales floors of

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its retail stores in California.

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seats as part of its efforts to remodel all of its stores to

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create uniformity following the merger of Cingular Wireless and

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AT&T Wireless.

Complaint ¶¶ 1-8.

Id. at ¶ 16.

This dispute arises out

Defendant began removing the

Plaintiffs allege that by, 2007,

United States District Court
For the Northern District of California

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seating had been removed from the sales floor of all of

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Defendant’s stores.

Id. at ¶ 17.

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Plaintiffs are members of the bargaining unit of the

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Communications Workers of America, Local 9505, District 9 (the

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Union).

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Defendant under the Collective Bargaining Agreement (CBA) that

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governed the terms and conditions of Plaintiffs’ employment with

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Defendant.

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grievance form challenged Defendant’s decision to remove seats

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from the sales floors of its stores and not to provide stools for

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CSRs to sit or lean on while providing service from behind a

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counter.

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shall be provided with suitable seats when the nature of the work

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reasonably permits the use of seats.”

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the grievance to binding arbitration pursuant to the CBA’s dispute

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resolution provision.

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On January 30, 2007, the Union filed a grievance against

Def. Request for Judicial Notice, Ex. C.

The

The Union sought an order that “all working employees

Id.

The parties submitted

On March 31, 2010, the arbitrator entered an opinion and

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award.

Defendant’s Request for Judicial Notice, Ex. D.

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parties agreed that the arbitrator had the authority to determine

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The

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the scope of the issues to be decided in the arbitration.

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1.

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before him:

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United States District Court
For the Northern District of California

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Id. at

The arbitrator determined that the following four issues were

(1) Did the grievance language and its subsequent
handling provide sufficient notice to the Company of the
“failure to bargain” issue so as to make the merits of
that issue arbitrable? If so,
(2) Did the company fail to bargain with the Union over
its decision to remove the chairs from the old Cingular
stores and not replace them with stools, and, if so,
what is the appropriate remedy?
(3) Does Article 16, Section 3 preclude arbitration of
the grievance claiming that the failure to provide
adequate seating for customer service representatives
violates the CBA and/or California law? If not,
(4) Is the Company violating the collective bargaining
agreement and/or applicable California law by not
providing seating to its customer service
representatives, and, if so, what is the appropriate
remedy?

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Id. at 2.

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language provided sufficient notice to Defendant of the “failure

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to bargain” issue; (2) Defendant failed to bargain in violation of

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the CBA; (3) contrary to the Defendant’s argument otherwise,

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whether the removal of seating violated the CBA and/or California

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law was arbitrable; and (4) the removal of seating did not violate

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the terms of the CBA or Industrial Welfare Commission (IWC) Wage

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Order 4-2001, Section 14 (Section 14).

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arbitrator declined to require Defendant to provide seating as a

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remedy for its failure to bargain, and instead directed the

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parties to discuss an appropriate form and measure of

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compensation.

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The arbitrator concluded that (1) the grievance

Id. at 8-11.

The

Id. at 13.

On August 19, 2011, Plaintiffs filed a complaint in Alameda
County Superior Court, alleging that Defendant violated California

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Labor Code section 1198 by failing to provide seating, in

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violation of Wage Order 7-2001, Section 14.

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penalties on behalf of themselves and other former and current

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RSCs pursuant to the California Labor Code Private Attorneys

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General Act of 2004 (PAGA), California Labor Code sections 2698 et

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seq., and prospective injunctive relief under California’s Unfair

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Competition Law (UCL), California Business and Professions Code

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sections 17200 et seq.

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Plaintiffs seek

Defendant removed the complaint to this Court on September

United States District Court
For the Northern District of California

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23, 2011, and the Court granted a series of stipulated stays while

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the parties attempted to settle this action.

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to dismiss or strike, arguing that (1) Plaintiffs’ claims are

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barred under the doctrine of res judicata based on the

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arbitrator’s decision; (2) Plaintiffs’ claims fail as a matter of

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law because they cannot establish a violation of Section 14; (3)

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Plaintiffs’ representative PAGA claim fails because it does not

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comply with Federal Rule of Civil Procedure 23; (4) any award of

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penalties pursuant to PAGA would be unjust, arbitrary, oppressive,

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and confiscatory as a matter of law; (5) Plaintiffs’ UCL claim

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fails as a matter of law; (6) Plaintiffs’ UCL claim is time-

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barred; and (7) the representative allegations of the UCL claim

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must be dismissed or stricken because they fail to comply with

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Rule 23.

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Defendant now moves

LEGAL STANDARD
I.

Motion to Dismiss for Failure to State a Claim
A complaint must contain a “short and plain statement of the

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claim showing that the pleader is entitled to relief.”

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Civ. P. 8(a).

Fed. R.

On a motion under Rule 12(b)(6) for failure to

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state a claim, dismissal is appropriate only when the complaint

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does not give the defendant fair notice of a legally cognizable

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claim and the grounds on which it rests.

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Twombly, 550 U.S. 544, 555 (2007).

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complaint is sufficient to state a claim, the court will take all

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material allegations as true and construe them in the light most

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favorable to the plaintiff.

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896, 898 (9th Cir. 1986).

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to legal conclusions; “threadbare recitals of the elements of a

Bell Atl. Corp. v.

In considering whether the

NL Indus., Inc. v. Kaplan, 792 F.2d

However, this principle is inapplicable

United States District Court
For the Northern District of California

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cause of action, supported by mere conclusory statements,” are not

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taken as true.

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(citing Twombly, 550 U.S. at 555).

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II.

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Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

Motion to Strike
Pursuant to Federal Rule of Civil Procedure 12(f), the court

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may strike from a pleading “any redundant, immaterial, impertinent

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or scandalous matter.”

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avoid spending time and money litigating spurious issues.

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Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993),

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rev'd on other grounds, 510 U.S. 517 (1994).

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if it has no essential or important relationship to the claim for

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relief plead.

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and is not necessary to the issues in question in the case.

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Motions to strike are disfavored because they are often used as

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delaying tactics and because of the limited importance of

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pleadings in federal practice.

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1450, 1478 (C.D. Cal. 1996).

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is clear that the matter to be stricken could have no possible

Id.

The purpose of a Rule 12(f) motion is to

Matter is immaterial

Matter is impertinent if it does not pertain
Id.

Bureerong v. Uvawas, 922 F. Supp.

They should not be granted unless it

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bearing on the subject matter of the litigation.

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Microsystems, Inc., 758 F. Supp. 1335, 1339 (N.D. Cal. 1991).

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Colaprico v. Sun

DISCUSSION
I.

Res Judicata
Defendant first argues that the arbitrator’s decision bars

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Plaintiffs’ claims under the doctrine of res judicata.

The

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doctrine of res judicata, or claim preclusion, provides that a

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final judgment on the merits bars future claims by the same

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parties based on the same causes of action.

Tahoe-Sierra Pres.

United States District Court
For the Northern District of California

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Council v. Tahoe Reg’l Planning Agency, 322 F.3d 1064, 1077 (9th

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Cir. 2003).

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were raised or could have been raised in a prior action.

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Radio Servs. Co., Inc. v. Glickman, 123 F.3d 1189, 1192 (9th Cir.

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1997).

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the judgment were actually pursued in the prior action; rather,

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the relevant inquiry is whether they could have been brought.

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Tahoe-Sierra, 322 F.3d at 1078.

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“relieve parties of the cost and vexation of multiple law suits,

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conserve judicial resources, and, by preventing inconsistent

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decisions, encourage reliance on adjudication.”

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Health Care Fin. Agency, 769 F.2d 590, 594 (9th Cir. 1985)

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(quoting Allen v. McCurry, 449 U.S. 90, 94 (1980)).

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It prohibits the re-litigation of any claims that
Western

It is immaterial whether the claims asserted subsequent to

The purpose of the doctrine is to

Marin v. HEW,

Three elements must be present in order for res judicata to

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apply: (1) an identity of claims; (2) a final judgment on the

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merits; and (3) the same parties or their privies.

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U.S. at 94.

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Clark v. Bear Stearns & Co., 966 F.2d 1318, 1321 (9th Cir. 1992).

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However, “res judicata bars only those grounds for recovery which

Allen, 449

Final arbitration awards can have preclusive effect.

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could have been asserted in the prior litigation.”

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Accordingly, “a claim is not barred by res judicata if the forum

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in which the first action was brought lacked subject matter

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jurisdiction to adjudicate that claim.”

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Id.

Id.

Here, the arbitrator found that Defendant’s decision not to

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provide seating for CSRs was not a violation of Section 14.

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Request for Judicial Notice, Ex. D at 11.

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that the arbitrator lacked the authority to make such a

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determination.1

Def.

Plaintiffs now argue

Plaintiffs cite various provisions of the CBA,

United States District Court
For the Northern District of California

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which limit arbitration to “matters processed through all steps of

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the formal grievance procedure” and provide that “grievances shall

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be confined to differences arising out of the interpretation and

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application of the terms or provisions of [the CBA].”

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Request for Judicial Notice, Ex. C at 8, 13.

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provides,

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Def.

The CBA further

The arbitrator shall be confined to the subjects
submitted for decision, and may in no event, as a part
of any such decision, impose upon either party any
obligation to arbitrate on any subjects which have not
been herein agreed upon as subjects for arbitration.
The arbitrator . . . shall not have the power to add to,
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Both Plaintiffs and Defendant argue that the other party
should be estopped from taking their respective positions
regarding the validity of the arbitrator’s finding. As Plaintiffs
point out, Defendant argued in its post-hearing arbitration brief
that the arbitrator did not have the authority to determine state
law claims. And, as Defendant points out, Plaintiffs framed the
issue to be decided by the arbitrator as whether Defendant
violated the CBA and the Wage Order when it removed the chairs
from its stores. Now, before this Court, the parties have
switched their positions, with Defendant arguing that the
arbitrator appropriately found that the removal of the chairs was
not a violation of the Wage Order and Plaintiffs arguing that the
arbitrator lacked the authority to make such a finding. The Court
does not find either party’s estoppel argument persuasive.

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subtract from, or vary the terms of the Agreement . . .
but shall be limited in power and jurisdiction to
determine whether there has been a violation of this
Agreement.

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Id. at 13.

arbitrator was limited to finding that Defendant violated the CBA
by removing the seating without bargaining with the Union and that
the removal itself was not a violation of the CBA.
Defendant responds that the Wage Order is “incorporated by

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United States District Court
For the Northern District of California

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Based on these provisions, Plaintiffs argue that the

reference into the CBA provision that permits AT&T to take
‘whatever actions are deemed reasonably necessary to fully comply
with laws, rules and regulations regarding safety.’”
at 2.

Reply Brief

However, the arbitrator found, “Whether employees can sit

while doing some of their job tasks is a health issue, and not one
of safety.”

Def. Request for Judicial Notice, Ex. D at 11.

Moreover, the provision Defendant cites is a non-arbitration
provision, which reads in full:
None of the terms of this Agreement shall be applied or
interpreted to restrict the Company from taking whatever
actions are deemed reasonably necessary to fully comply
with laws, rules and regulations regarding safety, and
grievance and arbitration provisions of this Agreement
shall not apply to any such actions. Discipline for
failure to observe safety rules shall be grievable and
arbitrable under the Terms of this Agreement. Other
matters relating to safety may be raised under the
Grievance Procedure but not arbitrated.

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Id. at 24 (emphasis added).
The Court finds that the arbitrator lacked the authority to

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make a binding decision regarding Defendant’s compliance with the

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Wage Order.

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res judicata.

Accordingly, Plaintiffs’ claims are not precluded by

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II.

Failure to state a claim for a violation of Section 14(A)

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Defendant argues that Plaintiffs have failed to state a claim

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for violation of Wage Order, Section 14(A), because the “nature of

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their work” requires them to stand as a matter of law.

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Wage Order, Section 14 provides:

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(A) All working employees shall be provided with
suitable seats when the nature of the work reasonably
permits the use of seats.

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United States District Court
For the Northern District of California

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(B) When employees are not engaged in the active duties
of their employment and the nature of the work requires
standing, an adequate number of suitable seats shall be
placed in reasonable proximity to the work area and
employees shall be permitted to use such seats when it
does not interfere with the performance of their duties.
Cal. Code Regs. Tit. 8 § 11070(14).
Defendant first argues that Plaintiffs cannot state a claim

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because they do not allege that the entire range of their assigned

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duties could be performed while seated.

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v. San Francisco Hilton, Inc., Case No. 04-431310 (San Francisco

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Co. Super. Ct. June 29, 2005), which found, “If standing is

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required for all or part of a job, Section A does not apply and

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the employer must comply with Section B.”

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court reasoned that Sections A and B of the Wage Order must be

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read collectively.

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A applies to any job which “reasonably permits the use of seats”

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and Section B applies to any job “where all or part of the job

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requires standing.”

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court’s reasoning, taken to its extreme, leads to absurd results.

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For example, an employer would not be required to provide a chair

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for an administrative assistant, whose primary job involves

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computer work and answering telephones, if he or she was also

Defendant cites Hamilton

Id. at 5.

The Hamilton

Accordingly, the Hamilton court found Section

Id.

As Plaintiffs point out, the Hamilton

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responsible for any tasks that require standing, such as

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delivering mail, making copies and running brief errands.

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Court is not required to defer to the state court’s interpretation

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of the Wage Order, and is not persuaded by its analysis.

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The

Defendant further cites Kilby v. CVS Pharmacy, Inc., 2012

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U.S. Dist. LEXIS 76507 (S.D. Cal.), which distinguished between

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“duties” and the overall “nature of the work” related to the

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plaintiff’s job.

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summary judgment, finding that where “the majority of an

The court granted the employer’s motion for

United States District Court
For the Northern District of California

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employee’s assigned duties must physically be performed while

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standing, and the employer expects and trains the employee to

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stand while doing so, the ‘nature of the work’ requires standing.”

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Id. at *19.

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However, Plaintiffs allege that RSCs stand behind counters

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and use computers when they provide customer service.

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at ¶ 17.

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behind the counters for stools or other seating;” “[t]here is

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nothing in the layout and/or design of AT&T Mobility stores that

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would interfere with the addition of seating for the retail

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employees;” and “[t]here is nothing in the nature of the work or

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the activities and/or tasks performed by Retail Sales Consultants

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in the AT&T Mobility retail stores that would be hindered or in

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any way negatively impacted by the ability to sit while working

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behind the counter.”

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Complaint

Plaintiffs further allege that “there is ample space

Complaint at ¶¶ 17-19.

Moreover, Plaintiffs have alleged that the nature of the work

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performed by RSCs permits sitting and identified at least one

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primary task carried out by RSCs that can be performed while

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seated.

This is sufficient to state a claim for a violation of

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the Wage Order.

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the majority of RSCs’ duties require them to stand, but that

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evidence is not presently before the Court and could not be

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considered on a motion to dismiss.

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The evidence may show, as it did in Kilby, that

Defendant also argues that, even if the work RSCs performs

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behind the counter can physically be performed seated, it has

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exercised its business judgment to determine that such work

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requires standing.

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stands for the proposition that any business judgment regarding

However, neither of the cases Defendant cites

United States District Court
For the Northern District of California

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standing is sufficient.

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employer’s reasonable job requirements,” Case No. 04-431310 at 5,

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while Kilby only requires that the court “consider an employer’s

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‘business judgment’ when attempting to discern the nature of an

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employee’s work.”

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Plaintiffs’ reference to Defendant’s “belief that the nature of

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the work performed by the employees prevents the use of seating”

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does not undermine a claim that such belief is not reasonable.

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The Court finds that Plaintiffs’ allegations are sufficient to

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state a claim for a violation of Wage Order Section 14(A).

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III. Failure to state a claim for a violation of Section 14(B)

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Hamilton only requires deference to “an

2012 U.S. Dist. LEXIS 76507 at *15-16.

Defendant also argues that Plaintiffs have failed to state a

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claim under Section 14(B) of the Wage Order.

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allege that Defendant has “failed and refused to provide Retail

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Sales Consultants with any seating despite the fact that the

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nature of the work performed by the employees reasonably permits

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the use of such seats whether or not the employee is engaged in

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the active duties of his or her employement.”

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However, Plaintiffs

Complaint ¶ 22.

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The Court finds that these allegations are sufficient to state a

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claim for a violation of Wage Order Section 14(B).

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IV.

PAGA claims

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Defendant next argues that Plaintiffs’ PAGA claims must be

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dismissed because (1) Plaintiff has not made allegations of the

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class certification elements of Federal Rule of Civil Procedure

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23; and (2) any award of penalties would be unjust, arbitrary,

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oppressive, and confiscatory as a matter of law.

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United States District Court
For the Northern District of California

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A.

Rule 23

The parties agree that an individual suing in a

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representative capacity under PAGA is not required to satisfy

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class action requirements if the case is brought in state court.

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See Arias v. Superior Court, 46 Cal. 4th 969, 975 (2009).

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However, the Ninth Circuit has not reached the question of whether

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or not representative PAGA claims brought in federal court must be

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certified under Rule 23, and the district courts are split on the

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issue.

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rather than one of substantive law and that, therefore, PAGA is

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not determinative of the procedures required in federal court.”

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Willner v. Manpower Inc., 2012 U.S. Dist. LEXIS 62227, *21 (N.D.

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Cal.) (collecting cases).

Some courts have found that “PAGA is a procedural statute,

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However, other courts, including every court to reach the

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issue in this district, have found that representative PAGA claims

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need not be certified under Rule 23 to proceed.

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U.S. Dist. LEXIS 62227 at *26; Tholmer v. Rite Aid Corp., 2012

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U.S. Dist. LEXIS 36747, *5 (N.D. Cal.); Moua v. Int’l Bus. Mach.

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Corp., 2012 U.S. Dist. LEXIS 11081, *10 (N.D. Cal.); Sample v. Big

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Lots Stores, Inc., 2010 U.S. Dist. LEXIS 131130, *8 (N.D. Cal.);

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See Willner, 2012

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Ochoa-Hernandez v. CJADER Foods, Inc., 2010 U.S. Dist. LEXIS

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32774, *13 (N.D. Cal.).2

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also reached this conclusion.

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LEXIS 47855 at *20 (“Plaintiff may pursue her PAGA claim as a non-

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class representative action); Mendez v. Tween Brands, Inc., 2010

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U.S. Dist. LEXIS 66454, *11 (E.D. Cal.) (“PAGA claims, by

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definition, are not class actions”).

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Several courts in other districts have
See, e.g., Kilby, 2012 U.S. Dist.

These courts, which have found PAGA claims need not comply
with Rule 23, have focused on the distinction between the purpose

United States District Court
For the Northern District of California

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of a PAGA representative action and a class action.

For example,

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in Sample, the court noted that “a PAGA claim serves to vindicate

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the public through the imposition of civil penalties as opposed to

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conferring a private benefit upon the plaintiff and the

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represented employees.”

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also Tholmer, 2012 U.S. Dist. LEXIS 36747 at *5 (“A PAGA

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representative claim that is not brought on behalf of a class and

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seeks only civil penalties is a law enforcement action that is

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distinct from a class action.”); Cardenas v. McLane Foodservice,

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Inc., 2011 U.S. Dist. LEXIS 13126, *8-9 (C.D. Cal.) (“Since PAGA

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plaintiffs neither represent the rights of a class nor recover

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damages, a PAGA claim neither purports to be a class action nor

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intends to accomplish the goals of a class action.”).

2010 U.S. Dist. LEXIS 131130 at *8; see

This

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One court in this district reached the opposite conclusion
in Thompson v. APM Terminals Pac. Ltd., 2010 U.S. Dist. LEXIS
(N.D. Cal.). However, in a later case, that same court
acknowledged its earlier finding, cited other courts that
determined that representative PAGA claims need not be brought as
class actions, found that reasoning persuasive and denied the
defendant’s motion to strike. Willner, 2012 U.S. Dist. LEXIS
62227 at *26.

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understanding of PAGA is shared by the California Supreme Court,

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which has held that, when pursuing a PAGA claim, “the employee

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plaintiff represents the same legal right and interest as state

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labor enforcement agencies--namely, recovery of civil penalties

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that otherwise would have been assessed and collected by the Labor

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and Workforce Development Agency.”

Arias, 46 Cal. 4th at 986.

The Court finds the reasoning of these cases to be

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persuasive.

Accordingly, the Court finds that Plaintiffs need not

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bring their PAGA claims as a class action.

Defendant’s motion to

United States District Court
For the Northern District of California

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dismiss or strike Plaintiffs’ PAGA claims on this ground is

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denied.

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B.

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Citing PAGA’s provision that the Court may award a lesser

Penalties

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amount than the maximum civil penalty if, “based on the facts and

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circumstances of the particular case, to do otherwise would result

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in an award that is unjust arbitrary and oppressive, or

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confiscatory,” Defendant argues that the Court should find that

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“no penalties could or would be imposed” and strike or dismiss

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Plaintiff’s PAGA claim.

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citing Cal. Lab. Code § 2699(e)(2).

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no authority to support such a finding at the pleading stage.

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Court declines to dismiss or strike on this ground.

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V.

Defendant’s Motion to Strike at 20-21,
However, Defendant provides
The

UCL Claim

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A.

Failure to state a claim

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Defendant argues that, because Plaintiffs’ first cause of

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action fails as a matter of law, their UCL claim must also fail as

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a matter of law because it is derivative of the first cause of

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action.

See Korea Supply Co. v. Lockheed Martin Corp., 29 Cal.

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4th 1134, 1143 (2003) (The UCL “‘borrows’ violations from other

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laws by making them independently actionable as unfair competitive

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practices.”).

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cause of action does not fail as a matter of law.

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the Court will not dismiss Plaintiffs’ UCL claim on this basis.

However, the Court finds that Plaintiffs’ first
Accordingly,

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B.

Time-Bar

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Defendant next argues that Plaintiffs’ UCL claim is timebarred.

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California Supreme Court has decided that UCL claims are governed

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United States District Court
For the Northern District of California

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by common law accrual rules and the continuous accrual rule may be

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applied.

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1185, 1196 (2013).

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which it has supplemental jurisdiction must apply state

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substantive law in adjudicating those claims.

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Casey, 487 U.S. 131, 151 (1988).

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limitations and issues relating to tolling are considered

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substantive state law which federal courts must apply in such

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cases.

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(1945)(statute of limitations); Walker v. Armco Steel Corp., 446

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U.S. 740, 750-52 (1980)(tolling).

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However, since the parties filed their papers, the

Aryeh v. Canon Business Solutions, Inc., 55 Cal. 4th
A federal court hearing state law claims over

See Felder v.

Both state statutes of

See Guaranty Trust Co. v. York, 326 U.S. 99, 109

Plaintiffs allege that Defendant has continually failed to

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provide seating since at least July 7, 2010 through the present.

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Accordingly, under the continuous accrual rule, Plaintiffs’ UCL

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claim is not barred by the statute of limitations.

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C.

Representative Allegations

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Defendant further argues that Plaintiffs’ UCL claim must be

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dismissed or stricken to the extent it seeks relief on behalf of

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Plaintiffs and “the current and former employees they represent.”

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As Defendant points out, the California Supreme Court has held

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that a private party seeking to pursue a representative action

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under the UCL “must meet the requirements for a class action.”

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Arias v. Superior Court, 46 Cal. 4th 969, 980 (2009).

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Defendant argues that Plaintiffs “must plead allegations in their

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Complaint that satisfy the class certification elements under Rule

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23.”

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Defendant’s motion to dismiss on this ground.

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Motion to Dismiss at 23.

Therefore,

Plaintiffs do not address

However, Defendant provides no authority requiring the Court

United States District Court
For the Northern District of California

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to assess the requirements for class certification at the pleading

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stage.

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strike class allegations], it is rare that the class allegations

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are stricken at the pleading stage.”

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2011 U.S. Dist. LEXIS 96735, at *9-10 n.4 (N.D. Cal.).

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makes no argument that Plaintiffs’ “allegations are ‘redundant,

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immaterial, impertinent, or scandalous.’”

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Rule of Civil Procedure 12(f)).

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Moreover, “[w]hile courts entertain [Rule 12(f) motions to

Clerkin v. MyLife.com, Inc.,
Defendant

Id. (quoting Federal

Plaintiffs allege that they represent “current or former

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employees of AT&T Mobility, who have worked or are currently

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working as Retail Sales Consultants at AT&T Mobility stores

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throughout the State of California at some time from July 7, 2010

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to the present.”

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Defendant notice of Plaintiffs’ proposed class.

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with the case as a class action, Plaintiffs will have to file a

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motion to certify the class.

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opportunity to challenge whether Plaintiffs’ proposed class meets

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the requirements of Rule 23.

Complaint ¶ 8.

This is sufficient to provide
Before proceeding

At that time, Defendant will have an

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2

CONCLUSION
For the foregoing reasons, the Court DENIES Defendant’s

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motion to dismiss or strike.

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held in this case on Wednesday, April 17, 2013 at 2:00 p.m. in

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Courtroom 2, 4th Floor, 1301 Clay Street, Oakland, CA 94612.

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Pursuant to Civil L.R. 16-9(a), a joint Case Management Statement

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will be due seven (7) days prior to the conference.

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A case management conference will be

IT IS SO ORDERED.

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United States District Court
For the Northern District of California

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Dated: 3/29/2013
CLAUDIA WILKEN
United States District Judge

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