Sanchez v. Usman et al

Filing 17

Order by Magistrate Judge Howard R. Lloyd granting 11 plaintiff's Motion to Dismiss. 3/25/2014 motion hearing is vacated. (hrllc2, COURT STAFF) (Filed on 3/19/2014)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA

10

SAN JOSE DIVISION

United States District Court
Northern District of California

11
FRANCISCO SANCHEZ,

12

Case No. 5:13-cv-04292 HRL

Plaintiff,
13

ORDER GRANTING PLAINTIFF’S
MOTION TO DISMISS

v.
14

16

MOHAMMAD USMAN dba NAIMAT
KADAH INTERNATIONAL, INC.;
NAIMAT KADAHA INTERNATIONAL,
INC.; KABOB & CURRY’S,

17

[Re: Dkt. No. 11]

Defendants.

15

18

Restaurant worker Francisco Sanchez sues defendants Mohammad Usman (dba Naimat

19

Kadah International, Inc.), Naimat Kadah International, Inc., and Kabab & Curry’s 1 for alleged

20

failure to pay overtime wages in violation of federal and state law. Defendants’ Answer purported

21

to include a “counterclaim” not on their own behalf, but on behalf of several newcomers. Pursuant

22

to Fed. R. Civ. P. 12(b)(1), Sanchez moves to dismiss the counterclaim, a state law conversion

23

claim filed on behalf of four of Kabab & Curry’s service employees: Ali Omar, Syed Hassan,

24

Kashif Mohammad, and Jahanzaib Aslam (collectively, “servers”). Defendants and servers

25

oppose the motion. All parties have expressly consented that all proceedings in this matter may be

26

heard and finally adjudicated by the undersigned. 28 U.S.C. § 636(c); Fed. R. Civ. P. 73. The

27
1

28

Defendants say that Kabab & Curry’s erroneously was sued as “Kabob & Curry’s.”

1

matter is deemed suitable for determination without oral argument, and the March 25, 2014

2

hearing is vacated. Civ. L.R. 7-1(B). Upon consideration of the moving and responding papers,

3

the court grants the motion.

4

Sanchez worked for a time at the Kabab & Curry’s restaurant in Santa Clara County. He

5

claims that, although he was a non-exempt employee, defendants paid him a fixed salary every

6

two weeks and did not compensate him for overtime at one and a half times his regular rate of pay.

7

(Id.). Defendants dispute much of plaintiff’s characterization of his duties and contend that Kabab

8

& Curry’s fully compensated him for all of his work at the restaurant.

9

At issue in the instant motion is the “counterclaim” for conversion asserted against
Sanchez by several of Kabab & Curry’s servers. They say that, pursuant to the restaurant’s

11
United States District Court
Northern District of California

10

practice, tips are collected by employees who place them in a box where they are later divided

12

among the restaurant’s service staff at the end of the shift. (Dkt. 8, p. 16 ¶ 11). The servers allege

13

that, in violation of restaurant practice, Sanchez regularly pocketed tips for himself and refused to

14

share them with the rest of the service staff. (Id. ¶ 12).

15

The gist of plaintiff’s motion to dismiss is that the servers’ conversion claim was not

16

properly brought as a counterclaim and that the servers are not properly joined in this action. And,

17

because the conversion claim is based solely on state law, Sanchez contends that this court lacks

18

jurisdiction to adjudicate it.

19

None of the servers was named as a defendant in plaintiff’s complaint. For that reason, the

20

conversion claim cannot properly be designated as a “counterclaim” under Fed. R. Civ. P. 13.

21

The servers do not contend that they are necessary parties to this action. Instead, they

22

argue that they may permissively be joined in this action under Fed. R. Civ. P. 20, which allows

23

persons to join as co-plaintiffs or co-defendants when (1) a right to relief is asserted by or against

24

them jointly, severally, or in the alternative, arising out the same transaction or occurrence, or

25

series of transactions or occurrences; and (2) any question of law or fact common to all parties will

26

arise in the action. Fed. R. Civ. P. 20(a)(1)(A). The servers correctly note that Rule 20 “is to be

27

construed liberally in order to promote trial convenience and to expedite the final determination of

28

2

1

disputes, thereby preventing multiple lawsuits.” Desert Empire Bank v. Ins. Co. of N. Am., 623

2

F.2d 1371, 1376 (9th Cir. 1980) (quoting League to Save Lake Tahoe v. Tahoe Regional Planning

3

Agency, 558 F.2d 914 (9th Cir. 1977)).

4

But, on the record presented, this court is satisfied that Rule 20 is not the proper vehicle for
analysis either. On its face, that rule pertains to the joinder of persons as co-plaintiffs or co-

6

defendants. The servers are neither one nor the other. Instead, it seems that what they would have

7

this court do is “consolidate” the instant action with their separate claim for conversion, which

8

could otherwise only be brought in state court. Based on the arguments presented here, this court

9

is unpersuaded that it properly may graft onto this action a conversion claim over which it would

10

have no subject matter jurisdiction, and which never was separately filed in any court. In short,

11
United States District Court
Northern District of California

5

the so-called “counterclaimants” are mere interlopers.

12

For the foregoing reasons, plaintiff’s motion to dismiss is granted and the servers’

13

conversion claim is dismissed. The dismissal is, however, without prejudice to the servers to

14

bring their claim in state court.

15

SO ORDERED.

16

Dated: March 19, 2014

17
18

______________________________________
HOWARD R. LLOYD
UNITED STATES MAGISTRATE JUDGE

19
20
21
22
23
24
25
26
27
28

3

1
2

5:13-cv-04292-HRL Notice has been electronically mailed to:
Gregory Scott Redmond

[e-mail]

3
James Dal Bon

[e-mail], [e-mail], [e-mail]

4
5

Tyler Mark Paetkau [e-mail], [e-mail],
[e-mail], [e-mail]

6
7
8
9
10

United States District Court
Northern District of California

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

4