Silvia et al v. Verizon Communications, Inc. et al

Filing 36

ORDER GRANTING MOTION TO DISMISS by Magistrate Judge Paul Singh Grewal granting 7 (psglc2, COURT STAFF) (Filed on 3/18/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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DEBBIE SILVIA, et al.,

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Plaintiffs,

Case No. 15-cv-04677-PSG
ORDER GRANTING MOTION TO
DISMISS

v.

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(Re: Docket No. 7)

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VERIZON COMMUNICATIONS, INC., et
al.,

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United States District Court
Northern District of California

Defendants.
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Plaintiffs Debbie Silvia and John W. Vieira allege that they were not paid prevailing wages

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or overtime for their work on the Silicon Valley Rapid Transit Project, which seeks to extend the

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BART system to San Jose.1 When Plaintiffs complained, their employers allegedly retaliated by

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cutting their pay and thus forcing them to quit.2 Defendant Engineering Associates, Inc.—one of

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four Defendants that Plaintiffs name in their complaint3—now moves to dismiss, arguing

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primarily that Plaintiffs’ allegations are facially implausible because they accuse each Defendant

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of participating in every wrongful act.4 The court agrees. The motion to dismiss is GRANTED,

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but with leave to amend.

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See Docket No. 1-1 at ¶¶ 12-13, 17-20, 35-47, 66-78, 110-115.

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See id. at ¶¶ 14-16, 21-22, 59-65,

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The others are Verizon Communications, Inc., Verizon California, Inc. and EA Technical
Services Inc. See id. at ¶¶ 24-29.
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See Docket No. 7.
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Case No. 15-cv-04677-PSG
ORDER GRANTING MOTION TO DISMISS

I.

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Vieira began working as a Lead Construction Inspector on the BART Silicon Valley
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project in August of 2012.5 Silvia joined the project in January 2014.6 Under California labor

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law, employees doing inspection work for publicly funded construction projects must be paid the
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prevailing wage rate.7 Plaintiffs contend—and their employers at one point acknowledged—that
their positions were subject to the prevailing wage requirement.8

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Nevertheless, Plaintiffs allege, they were paid less than prevailing wages.9 Moreover,
Vieira claims that he never received overtime; instead, he got so-called “comp time” for overtime
hours, even though Defendants knew the arrangement was illegal.10 In mid-2015, Silvia filed a
wage complaint with the Labor Commissioner of the State of California.11 Defendants responded
by drastically reducing her effective hourly wage rate from $38.75 to $26 and cutting her hours.12

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United States District Court
Northern District of California

A few days later, Vieira raised his own complaint directly with his employers, and they cut his pay
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too.13 Unwilling and unable to accept the lower salary, Plaintiffs resigned.14 Defendants never
fully reimbursed Plaintiffs for the unused time off and paid sick leave that they had accrued.15

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See Docket No. 1-1 at ¶ 17.

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See id. at ¶ 12.

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Cal. Lab. Code §§ 1720(a)(1), 1773.2, 1775; see Lusardi Constr. Co. v. Aubry, 1 Cal. 4th 976,
985-88 (1992).

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See Docket No. 1-1 at ¶¶ 6, 70; Docket No. 1-1, Ex. 1.

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See Docket No. 1-1 at ¶ 73.

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Id. at ¶¶ 18-19.

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See id. at ¶¶ 59, 64.

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See id. at ¶¶ 12, 14, 60.

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See id. at ¶¶ 21, 63.

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See id. at ¶¶ 15, 22.

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See id. at ¶¶ 16, 23.

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Case No. 15-cv-04677-PSG
ORDER GRANTING MOTION TO DISMISS

Plaintiffs filed this action in state court in August 2015.16 Two months later, EA removed

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it to this court.17 Plaintiffs allege ten state law causes of action, including several labor law

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violations, breach of contract, unjust enrichment, recovery through a public works surety bond and

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sex discrimination against Silvia.18 Each cause of action names every Defendant.19 In fact, aside

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from the section introducing the parties, every allegation in the complaint refers to Defendants

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collectively.20

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II.
This court has subject matter jurisdiction pursuant to 28 U.S.C. § 1332. The parties further

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consented to the jurisdiction of the undersigned magistrate judge under 28 U.S.C. § 636(c) and
Fed. R. Civ. P. 72(a).21

United States District Court
Northern District of California

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III.
A complaint must contain “a short and plain statement of the claim showing that the

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pleader is entitled to relief.”22 When a plaintiff fails to proffer “enough facts to state a claim to

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relief that is plausible on its face,” the complaint may be dismissed for failure to state a claim upon

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which relief may be granted.23 A claim is facially plausible “when the pleaded factual content

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allows the court to draw the reasonable inference that the defendant is liable for the misconduct

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alleged.”24 Under Fed. R. Civ. P. 12(b)(6), “dismissal can be based on the lack of a cognizable

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See id.

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See Docket No. 1.

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See Docket No. 1-1 at ¶¶ 66-135.

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See id.

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See id.

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See Docket Nos. 10, 11, 12.

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Fed. R. Civ. P. 8(a)(2).

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Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).

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Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009).

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Case No. 15-cv-04677-PSG
ORDER GRANTING MOTION TO DISMISS

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legal theory or the absence of sufficient facts alleged under a cognizable legal theory.”25

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Dismissal with prejudice and without leave to amend is appropriate if it is clear that the complaint

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could not be saved by amendment.26

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At this stage of the case, the court must accept all material allegations in the complaint as

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true and construe them in the light most favorable to the non-moving party.27 The court’s review

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is limited to the face of the complaint, materials incorporated into the complaint by reference and

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matters of which the court may take judicial notice.28 However, the court need not accept as true

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allegations that are conclusory, unwarranted deductions of fact or unreasonable inferences.29
Plaintiffs’ complaint does not satisfy these standards. The main defect is the one that EA

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notes: the uniform treatment of all Defendants. For example, the complaint says only that

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United States District Court
Northern District of California

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Plaintiffs were “employees of Defendants,” “employed by Defendants” and “hired by

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Defendants.”30 But, because “the statutory scheme governing prevailing wages finds no private

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right of action by a subcontractor’s employee against other parties than the subcontractor,”31

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exactly which Defendant employed Plaintiffs matters a great deal for determining liability. It is

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simply not plausible that Plaintiffs had employment relationships with all four Defendants. To the

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contrary, Plaintiffs attached one of Vieira’s paystubs to their complaint, and it lists only EA

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Technical Services as his employer.32

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Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990).

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See Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003).

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See Metzler Inv. GMBH v. Corinthian Colls., Inc., 540 F.3d 1049, 1061 (9th Cir. 2008).

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See id.

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See Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001); see also Twombly,
550 U.S. at 561 (holding that “a wholly conclusory statement of [a] claim” will not survive a
motion to dismiss).

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Docket No. 1-1 at ¶¶ 1, 18, 58.

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Violante v. Cmtys. Sw. Dev. & Constr. Co., 138 Cal. App. 4th 972, 975 (2006).

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See Docket No. 1-1, Ex. 2. Another document attached to the complaint shows that Vieira had
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Case No. 15-cv-04677-PSG
ORDER GRANTING MOTION TO DISMISS

Similarly, Plaintiffs’ fifth and sixth causes of action effectively allege that each Defendant

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owes Plaintiffs on a payment bond. Cal. Civ. Code § 9554 requires public works contractors to

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have an admitted surety insurer execute a payment bond worth, at a minimum, the total amount

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payable on the contract. Sections 9100 and 9564 then authorize workers to assert claims directly

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against the surety. But Plaintiffs raise this claim against all Defendants. It is not plausible that

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each named Defendant is a surety or bonding company liable on the payment bond.

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IV.
EA’s motion to dismiss under Rule 12(b)(6) is GRANTED.33 Dismissal without leave to

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amend is only appropriate if it is clear that the complaint could not be saved by amendment such

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as after a plaintiff’s “repeated failure to cure deficiencies by amendments previously allowed.”34

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United States District Court
Northern District of California

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Because Plaintiffs have not yet had any opportunity to amend their complaint, the court cannot say

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that further amendment would be futile. Leave to amend therefore is GRANTED. Plaintiffs shall

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file any amended complaint within 21 days.

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SO ORDERED.

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Dated: March 18, 2016
_________________________________
PAUL S. GREWAL
United States Magistrate Judge

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an “@eatechnical.com” email address. Id., Ex. 1.
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EA also moves to dismiss under Rule 8(a). That motion is DENIED AS MOOT.

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Eminence Capital, 316 F.3d at 1052 (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)).

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Case No. 15-cv-04677-PSG
ORDER GRANTING MOTION TO DISMISS