Mendoza v. Zambrano et al

Filing 34

ORDER by Judge Kandis A. Westmore granting Defendants' 11 Motion to Dismiss with leave to amend. Amended Pleadings due by 7/13/2017. ORDER discharging 25 4/26/17 order to show cause. (kawlc1, COURT STAFF) (Filed on 6/16/2017) (Additional attachment(s) added on 6/16/2017: # 1 Certificate/Proof of Service) (sisS, COURT STAFF).

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ANTHONY M. MENDOZA, Plaintiff, 8 9 10 United States District Court Northern District of California 11 Case No. 4:16-cv-06455-KAW ORDER GRANTING DEFENDANTS' MOTION TO DISMISS; ORDER DISCHARGING ORDER TO SHOW CAUSE v. AARON ZAMBRANO, et al., Re: Dkt. Nos. 11 & 25 Defendants. 12 13 On April 3, 2017, Defendants 24/7 Rooter & Plumbing Services, Inc., Aaron Zambrano, 14 and Rey Zambrano filed a motion to dismiss Plaintiff Anthony Mendoza’s first amended 15 complaint on the grounds that the complaint fails to state a claim upon which relief can be granted. 16 (Defs.’ Mot., Dkt. No. 11.) Plaintiff failed to timely file an opposition, and the Court issued an 17 order to show cause on April 26, 2017. (Dkt. No. 25.) 18 On June 15, 2017, the Court held a hearing, and, after careful consideration of the parties’ 19 arguments and the applicable legal authority, for the reasons set forth below, GRANTS 20 Defendants’ motion to dismiss with leave to amend. 21 22 I. BACKGROUND Plaintiff Anthony Mendoza alleges that Defendants 24/7 Rooter & Plumbing Services, 23 Inc., Aaron Zambrano, and Rey Zambrano violated the Fair Labor Standards Act (“FLSA”) during 24 the course of his employment. Plaintiff worked for Defendants as a plumber from January 1, 2016 25 to April 1, 2016, and from August 1, 2016 to October 7, 2016. (First Am. Compl., “FAC,” Dkt. 26 No. 6 ¶ III.B-C. His duties included, but were not limited to, going to addresses as directed by 27 management, analyzing and troubleshooting problems, providing options to clients, repairing and 28 replacing plumbing, applying for permits if required, and collecting money for the services 1 provided. (FAC ¶ III.C.) Plaintiff was originally compensated in the amount of 25% of the job 2 completed, but in March 2016, his employers changed the compensation structure to 15% of the 3 job, plus $13 per hour. (FAC ¶ III.D.) However, if 25% of the job was more money, the employee 4 was paid the higher amount. Id. Plaintiff alleges that he worked 50 hours per week. (FAC ¶ III.E.) 5 Plaintiff alleges that he was unlawfully terminated on October 7, 2016. (FAC ¶ F.3.) On January 12, 2017, Plaintiff filed the first amended complaint. On April 3, 2017, 6 Defendants filed a motion to dismiss. (Defs.’ Mot., Dkt. No. 11.) Plaintiff did not file a timely 8 opposition, so the Court issued an order to show cause on April 26, 2017, and advised Plaintiff 9 that the Federal Pro Bono Project’s Help Desk was available to assist him in complying with the 10 order to show cause. (4/26/17 Order to Show Cause, Dkt. No. 25.) The order to show cause was 11 United States District Court Northern District of California 7 returned by the U.S. Postal Service as undeliverable. (Dkt. No. 26.)1 On May 23, 2017, Plaintiff filed an untimely opposition, but did not respond to the order to 12 13 show cause. (Pl.’s Opp’n, Dkt. No. 28.) Plaintiff also improperly attached exhibits to his 14 opposition, which are stricken. On May 24, 2017, Defendants filed their reply. (Defs.’ Reply, Dkt. 15 No. 29.) 16 II. LEGAL STANDARD 17 The Federal Rules of Civil Procedure require a complaint to contain “a short and plain 18 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. Pro. 8(a)(2). 19 However, “a plaintiff’s obligation to provide the grounds of his entitlement to relief requires more 20 than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not 21 do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, (2007) (quoting Conley v. Gibson, 355 U.S. 22 41, 47, (1957)). Under Federal Rule of Civil Procedure 12(b)(6), a party may file a motion to dismiss based 23 24 on the failure to state a claim upon which relief may be granted. A motion to dismiss under Rule 25 12(b)(6) tests the legal sufficiency of the claims asserted in the complaint. Navarro v. Block, 250 26 27 28 1 Other mail from the court, including the ADR Clerk’s Notice Setting ADR Phone Conference, have also been returned as undeliverable, indicating that Plaintiff cannot reliably receive mail at his address of record. (See Dkt. No. 31.) 2 1 F.3d 729, 732 (9th Cir. 2001). 2 In considering such a motion, a court must "accept as true all of the factual allegations 3 contained in the complaint," Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (citation 4 omitted), and may dismiss the case or a claim "only where there is no cognizable legal theory" or 5 there is an absence of "sufficient factual matter to state a facially plausible claim to relief." 6 Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010) (citing 7 Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009); Navarro, 250 F.3d at 732) (internal quotation 8 marks omitted). 9 A claim is plausible on its face when a plaintiff "pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 11 United States District Court Northern District of California 10 556 U.S. at 678 (citation omitted). "Threadbare recitals of the elements of a cause of action" and 12 "conclusory statements" are inadequate. Iqbal, 556 U.S. at 678; see also Epstein v. Wash. Energy 13 Co., 83 F.3d 1136, 1140 (9th Cir. 1996) ("[C]onclusory allegations of law and unwarranted 14 inferences are insufficient to defeat a motion to dismiss for failure to state a claim."). "The 15 plausibility standard is not akin to a probability requirement, but it asks for more than a sheer 16 possibility that a defendant has acted unlawfully . . . When a complaint pleads facts that are 17 merely consistent with a defendant's liability, it stops short of the line between possibility and 18 plausibility of entitlement to relief." Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557) 19 (internal citations omitted). 20 The Court has an obligation to construe pro se pleadings liberally “to afford the petitioner 21 the benefit of any doubt.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (discussing post- 22 Iqbal pleading standards). Despite the flexible pleading policy of the Federal Rules of Civil 23 Procedure, a complaint must give fair notice and state the elements of the claim plainly and 24 succinctly. See Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). A 25 plaintiff must allege with at least some degree of particularity overt facts which a defendant 26 engaged in to support the plaintiff’s claim. Id. at 649. 27 28 Generally, if the court grants a motion to dismiss, it should grant leave to amend even if no request to amend is made "unless it determines that the pleading could not possibly be cured by 3 1 the allegation of other facts." Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (citations 2 omitted). III. 3 DISCUSSION 4 A. 5 Defendants move to dismiss all claims on the grounds that the first amended complaint Failure to Satisfy Pleading Standards 6 fails to satisfy Rule 8. (Defs.’ Mot. at 1.) Rule 8 requires “a short and plain statement of the claim 7 showing that the pleader is entitled to relief.” Fed. R. Civ. Pro. 8(a)(2). Here, the operative 8 complaint does not clearly identify the purported claims, violations, or even provide a formulaic 9 recitation of the elements of each cause of action, which would still be insufficient to withstand a 10 motion to dismiss under Rule 12(b)(6). See Twombly, 550 U.S. at 555. United States District Court Northern District of California 11 The operative complaint also does not plainly and succinctly identify the transaction or 12 occurrence giving rise to each legal claim and the facts that support the elements of that claim. 13 For example, it is unclear whether Plaintiff alleges unpaid overtime in violation of FLSA. As 14 such, the complaint fails to plead sufficient facts of Defendants’ purported wrongdoing to provide 15 fair notice of the claims alleged against them and the grounds upon which those claims rest. Accordingly, as currently pled, the first amended complaint is wholly insufficient and must 16 17 be amended to comply with the Iqbal-Twombly pleading standard. The second amended 18 complaint should clearly delineate each legal claim, and state facts indicating the nature and 19 grounds for each claim. Specifically, each cause of action should clearly state the alleged 20 violation, the statutory authority, the date on which the incident occurred, who was involved, the 21 facts, and how the claim satisfies the elements rendering it a viable cause of action. Additionally, the amended complaint must also comport with Rule 10(b) of the Federal 22 23 Rules of Civil Procedure, such that each paragraph must be separately numbered. Plaintiff’s first 24 amended complaint runs afoul of this requirement. 25 B. Failure to State a Claim under Federal Rule 12(b)(6) 26 Alternatively, Defendants move to dismiss all claims on the grounds that they are 27 insufficiently pled. (Defs.’ Mot. at 1.) The Court agrees, and will address each cause of action. 28 /// 4 i. 1 First Cause of Action 2 Plaintiff’s first cause of action appears to allege a violation of the Fair Labor Standards 3 Act. (FAC ¶ F.1.) While FLSA is codified in 29 U.S.C. §§ 201-209, the code sections pled, 29 4 U.S.C. §§ 204-205, are incorrect. Notwithstanding, Plaintiff generally alleges that during all dates 5 of his employment, Defendants “Aaron and Rey Zambrano failed to provide a valid notice to 6 employee including accurate employee info, deductions, and contact info, leading to a[n] amount 7 of no less than $18,000 in lost wages.” Id. Plaintiff has not clearly identified a claim or the 8 statutory bases upon which he can recover. It is also unclear whether he is alleging that he was 9 furnished with inaccurate pay stubs under California law or if he is alleging an unpaid overtime violation under FLSA. Indeed, Plaintiff’s opposition indicates that this claim is, in part, for unpaid 11 United States District Court Northern District of California 10 overtime. (See Pl.’s Opp’n at 2.) Accordingly, Plaintiff is granted leave to amend the first cause of action to specify the 12 13 nature of the claims and sufficient facts to that wou`ld entitle him to relief. 14 ii. Second Cause of Action Plaintiff’s second cause of action is for an unsafe working environment, which allegedly 15 16 resulted in Plaintiff’s on-the-job injury. (FAC ¶ F.2.) Plaintiff claims to have sustained an injury 17 on August 22, 2016 at 1208 Delores St., San Francisco, CA. Id. Plaintiff does not specify how his 18 working conditions were unsafe or how that unsafe condition led to his injury. Again, Plaintiff 19 does not cite a correct statute to allege such violations. In opposition, Plaintiff clarifies that there 20 was an OSHA violation, and that he is alleging that Defendants were negligent for denying 21 Plaintiff medical care. (Pl.’s Opp’n at 2.) Again, as plead, Plaintiff’s claim does not identify an 22 appropriate statutory authority nor contain sufficient facts that, if true, would state a cause of 23 action. 24 25 26 Accordingly, the second cause of action is dismissed with leave to amend. iii. Third Cause of Action Plaintiff’s third cause of action is for wrongful termination under Title VII, OSHA, and 27 FLSA. (FAC ¶ F.3) Plaintiff alleges that Defendants Aaron and Rey Zambrano wrongfully 28 terminated Plaintiff on October 7, 2016 for exercising his legal right to request medical attention 5 1 2 in regards to the work-related injury sustained on August 22, 2016. Id. The third cause of action suffers from the same deficiencies as the others in that Plaintiff 3 fails to identify the facts to allege that he was terminated in violation of any of those statutes. 4 Plaintiff must separately allege violations of each statute, and include facts that would state a 5 cause of action under each applicable statute. 6 7 Accordingly, this cause of action is dismissed with leave to amend, and is encouraged to obtain assistance from the Federal Pro Bono Project’s free Help Desk. 8 C. Responses to the Order to Show Cause 9 Plaintiff did not timely file an opposition to the motion to dismiss, so the Court issued an order to show cause, which required that Plaintiff file an opposition and a separate response to the 11 United States District Court Northern District of California 10 order to show cause by May 17, 2017. Plaintiff did not file an opposition until May 23, 2017. 12 (Dkt. No. 28.) He did not file a response to the order to show cause, likely due to the fact that the 13 order was returned by the U.S. Postal Service as undeliverable. (See Dkt. No. 26.) 14 At the hearing, Plaintiff explained that he had moved and did not update his address with 15 the Court, but would do so immediately following the hearing. The Court advised Plaintiff that he 16 has a continuing obligation to keep the Court informed of his current address, and that the failure 17 to do so may result in the dismissal of his case. 18 Accordingly, the order to show cause is discharged, and Plaintiff is advised that he is 19 obligated to meet deadlines in this case, and any future failures to timely respond could result in 20 his case being dismissed with prejudice for failure to prosecute. 21 22 IV. CONCLUSION In light of the foregoing, Defendants’ motion to dismiss the first amended complaint is 23 GRANTED as to all causes of action. Plaintiff shall file a second amended complaint on or before 24 July 13, 2017, which must clearly identify the correct statutory authority and specify the facts 25 supporting each cause of action. Failure to timely file a second amended complaint that complies 26 with this order may result in the dismissal of this action. 27 Plaintiff is advised that the second amended complaint will supersede or replace all 28 previous complaints and those complaints will be treated as nonexistent. Armstrong v. Davis, 275 6 1 F.3d 849, 878 n.40 (9th Cir. 2001), abrogated on other grounds by Johnson v. Cal., 543 U.S. 499 2 (2005). The second amended complaint must therefore be complete in itself without reference to 3 the prior or superseded pleading, as “[a]ll causes of action alleged in an original complaint which 4 are not alleged in an amended complaint are waived.” King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 5 1987) (citations omitted). 6 In amending his complaint, Plaintiff is advised to contact the Federal Pro Bono Project’s 7 Help Desk—a free service for pro se litigants—to make an appointment by calling (415) 782- 8 8982. He should bring a copy of this order and his first amended complaint to the appointment. 9 Plaintiff may also wish to consult a manual the court has adopted to assist pro se litigants in presenting their case. This manual, and other free information for pro se litigants, is available 11 United States District Court Northern District of California 10 online at: 12 Additionally, the July 25, 2017 case management conference is continued to September 26, 13 2017 at 1:30 p.m. in Courtroom 4, 1301 Clay Street, Oakland, California. Case management 14 conference statements are due on or before September 19, 2017. 15 16 IT IS SO ORDERED. Dated: June 16, 2017 __________________________________ KANDIS A. WESTMORE United States Magistrate Judge 17 18 19 20 21 22 23 24 25 26 27 28 7

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