Guerrero et al v. T-Y Nursery, Inc. et al
Filing
27
ORDER Denying 14 15 Motions to Dismiss; Denying Motion for More Definite Statement. Signed by Judge Jeffrey T. Miller on 10/29/2014. (rlu)
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
SOUTHERN DISTRICT OF CALIFORNIA
10
11
12
13
14
15
16
VICTOR GUERRERO, EUGENIO
AGUILAR PAZ, FIDEL RAYO
HERNANDEZ and BAHUMAN
GONZALEZ,
Plaintiffs,
vs.
CASE NO. 13cv3126 JM(BGS)
ORDER DENYING MOTIONS TO
DISMISS; DENYING MOTION FOR
A MORE DEFINITE STATEMENT
T-Y NURSERY, INC., and
STATEWIDE LABOR
CORPORATION ,
Defendants.
17
18
Defendant T-Y Nursery (“T-Y”) moves to dismiss the First Amended Complaint
19 (“FAC”) pursuant to Fed.R.Civ.P. 12(b)(6) and for a more definite statement pursuant
20 to Fed.R.Civ.P. 12(e). Defendant Statewide Labor Corporation (“Statewide”) also
21 moves to dismiss the FAC pursuant to Fed.R.Civ.P. 12(b)(6). Plaintiffs Victor
22 Guerrero, Eugenio Aguilar Paz, Fidel Rayo Hernandez and Bahuman Gonzalez
23 (collectively “Plaintiffs”) oppose all motions. Pursuant to Local Rule 7.1(d)(1), the
24 court finds the matters presented appropriate for decision without oral argument. For
25 the reasons set forth below, all motions are denied.
BACKGROUND
26
27
The operative FAC, filed on April 18 2014, alleges twelve causes of action for
28 (1) violation of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §201 et seq.;
-1-
13cv3126
1 violation of the Migrant and Seasonal Agricultural Worker Protection Act (“AWPA”),
2 29 U.S.C. §1801 et seq.; (3) failure to pay contractual wages; (4) failure to pay
3 minimum wage, Cal. Labor Code §§1182.12, 1194, 1194.2, and 1197; (5) failure to
4 provide meal periods, Cal. Labor Code §§226.7, 1198; (6) failure to pay promised
5 vacation benefits upon termination, Cal. Labor Code §227.3; (7) knowing and
6 intentional failure to provide accurate and complete itemized statements, Cal. Labor
7 Code §226; (8) failure to pay all wages due upon termination, Cal. Labor Code §201,
8 203; (9) failure to indemnify employees for necessary expenditures, Cal. Labor Code
9 §1198, 2802; (10) failure to provide copies of employment records, Cal. Labor Code
10 226; (11) unlawful competition, Cal. Bus. and Prof. Code §17200 et seq.; and (12)
11 private attorney’s general act, Cal. Labor Code §2698. With respect to the FLSA
12 claim, Plaintiffs seek to bring this claim on behalf of “themselves and for and on behalf
13 of other employees similarly situated.” (FAC ¶55).
14
Plaintiffs are agricultural workers with an employment relationship with
15 Defendants. Defendant T-Y operates agricultural nurseries in San Diego County and
16 employed Plaintiffs. (FAC ¶17). T-Y is in the business of cultivating plants, shrubs
17 and trees which are sold in interstate commerce. (FAC ¶31). Defendant Statewide is
18 in the business of agricultural production and labor contracting and supplies labor to
19 agricultural nurseries like T-Y. (FAC ¶¶16 - 18).
20
In broad brush, Plaintiffs allege that Defendants failed to pay full wages by,
21 among other things, requiring Plaintiffs to report to work and wait, off-the-clock, until
22 frost was no longer on the fields before Plaintiffs could begin to work. Defendants also
23 allegedly failed to provide legally-required accurate wage statements, pay minimum
24 wages, pay accrued vacation benefits, timely provide wage statements, furnish safety
25 devices, provide meal breaks, provide and maintain tools and equipment necessary to
26 perform their job, and timely pay wages upon termination. (FAC ¶¶41-48). Plaintiffs
27 also allege that Defendants exposed workers to unsafe and unhealthy work conditions
28 by, for example, failing to provide shade and cool-down recovery periods. (FAC ¶49).
-2-
13cv3126
1 Plaintiffs seek compensatory, statutory, and liquidated damages. Plaintiffs also seek
2 declaratory relief and an award of costs, including attorney’s fees.
3
Defendants seek to dismiss the first and second causes of action for violation of
4 FLSA and AWPA, respectively. T-Y also moves for a more definite statement.
5
DISCUSSION
6 Legal Standards
7
Federal Rule of Civil Procedure 12(b)(6) dismissal is proper only in
8 "extraordinary" cases. United States v. Redwood City, 640 F.2d 963, 966 (9th Cir.
9 1981). Courts should grant 12(b)(6) relief only where a plaintiff's complaint lacks a
10 "cognizable legal theory" or sufficient facts to support a cognizable legal theory.
11 Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990). Courts should
12 dismiss a complaint for failure to state a claim when the factual allegations are
13 insufficient “to raise a right to relief above the speculative level.” Bell Atlantic Corp.
14 v. Twombly, 550 U.S. 544, 555 (2007) (the complaint’s allegations must “plausibly
15 suggest[]” that the pleader is entitled to relief); Ashcroft v. Iqbal, 556 U.S. 662 (2009)
16 (under Rule 8(a), well-pleaded facts must do more than permit the court to infer the
17 mere possibility of misconduct). “The plausibility standard is not akin to a ‘probability
18 requirement,’ but it asks for more than a sheer possibility that a defendant has acted
19 unlawfully.” Id. at 678. Thus, “threadbare recitals of the elements of a cause of action,
20 supported by mere conclusory statements, do not suffice.” Id. The defect must appear
21 on the face of the complaint itself. Thus, courts may not consider extraneous material
22 in testing its legal adequacy. Levine v. Diamanthuset, Inc., 950 F.2d 1478, 1482 (9th
23 Cir. 1991). The courts may, however, consider material properly submitted as part of
24 the complaint. Hal Roach Studios, Inc. v. Richard Feiner and Co., 896 F.2d 1542, 1555
25 n.19 (9th Cir. 1989).
26
Finally, courts must construe the complaint in the light most favorable to the
27 plaintiff. Concha v. London, 62 F.3d 1493, 1500 (9th Cir. 1995), cert. dismissed, 116
28 S. Ct. 1710 (1996). Accordingly, courts must accept as true all material allegations in
-3-
13cv3126
1 the complaint, as well as reasonable inferences to be drawn from them. Holden v.
2 Hagopian, 978 F.2d 1115, 1118 (9th Cir. 1992). However, conclusory allegations of
3 law and unwarranted inferences are insufficient to defeat a Rule 12(b)(6) motion. In
4 Re Syntex Corp. Sec. Litig., 95 F.3d 922, 926 (9th Cir. 1996).
5 The FLSA Claim
6
Defendants seek to dismiss the FLSA claim on the ground that Plaintiffs and
7 putative class members have failed to file written consents to join the action as required
8 by 29 U.S.C. §216(b). The FLSA provides that “[n]o employee shall be a party
9 plaintiff to any such action unless he gives his consent in writing to become such a
10 party and such consent is filed in the court in which such action is brought.” Id. At the
11 outset, the court notes that FLSA collective actions and Rule 23 class actions have
12 separate procedures. In FLSA collective actions, a plaintiff must affirmatively opt-in
13 a FLSA action. Id.; Busk v. Integrity Staffing Solutions, Inc., 713 F.3d 525, 528 (9th
14 Cir. 2013).
15
Defendants raise two distinct issues. First, with respect to maintaining a
16 collective action, the consents to sue by current or former co-employees of Plaintiffs
17 need not be filed with the complaint. Plaintiffs must timely seek leave from this court
18 to proceed as a collective action. At that time, Plaintiffs must file the consents from
19 putative class members. However, until the parties conduct discovery on the viability
20 of maintaining a collective action, any motion to maintain a collective action is
21 premature and the court therefore denies this portion of Defendants’ motion to dismiss.
22 The second issue concerns whether the named Plaintiffs must file consents on their
23 own behalf. As noted by the parties, it does not appear that the Ninth Circuit has
24 addressed whether individual plaintiffs in a FLSA must file consents. The court notes
25 that consent can reasonably be found in this case: Plaintiffs have retained counsel and
26 commenced this action. Under virtually every conceivable circumstance, such conduct
27 demonstrates the consent of Plaintiffs to bring a FLSA cause of action. Even if not
28 actual consent, the court notes that all three Plaintiffs have filed written consents. (Ct.
-4-
13cv3126
1 Dkt. 18, 20). Consequently Defendants’ arguments are moot and the court denies the
2 motion.
3
In sum, the court denies the motions to dismiss the FLSA claim.
4 The AWPA Claim
5
Defendants also move to dismiss the AWPA claim on the ground that the
6 complaint fails to adequately allege that the nature of Plaintiffs’ work at T-Y was
7 seasonal or temporary or that T-Y was an agricultural employer. Defendants contend
8 that the allegation that Plaintiffs are “seasonal agricultural worker(s) within the
9 meaning of 29 U.S.C. §1802(1), and/or individuals entitled to the AWPA’s
10 protections,” (FAC ¶56), are insufficient under Twombly to state a claim. Defendants
11 contend that additional factual allegations are required to state a claim.
12
AWPA only affords protection to migrant agricultural workers defined as an
13 “individual who is employed in agricultural employment of a seasonal or other
14 temporary nature.” 29 U.S.C. §1802(10). In pertinent part, the regulations define “on
15 a seasonal or other temporary basis” as meaning:
16
17
18
19
20
21
22
23
24
25
26
27
28
(1) Labor is performed on a seasonal basis where, ordinarily, the
employment pertains to or is of the kind exclusively performed at certain
seasons or periods of the year and which, from its nature, may not be
continuous or carried on throughout the year. A worker who moves from
one seasonal activity to another, while employed in agriculture or
performing agricultural labor, is employed on a seasonal basis even
though he may continue to be employed during a major portion of the
year.
(2) A worker is employed on other temporary basis where he is employed
for a limited time only or his performance is contemplated for a particular
piece of work, usually of short duration. Generally, employment, which
is contemplated to continue indefinitely, is not temporary.
29 C.F.R. §500.20(s). Defendants contend that Plaintiffs are, in fact, year-round
employees not entitled to the protections afforded by AWPA to seasonal or temporary
workers.
The court denies the motion. Twombly has not eliminated the concept of federal
notice pleading. Twombly clearly stated that its discussion of pleadings “does not run
counter to Swierkiewicz v. Sorma N.A., 534 U.S. 506 (2002).” Twombly, 550 U.S. at
-5-
13cv3126
1 547 (notice pleading sufficient in a Title VII case); Fed.R.Civ.P. 8(a)(2) (a complaint
2 need only contain “a short and plain statement of the claim showing that the pleader is
3 entitled to relief”). While a bare and simple notice allegation is generally not sufficient
4 to state a claim, a well-pleaded claim must not only provide notice but also “suggest
5 that the claim has at least a plausible chance of success.” In Re Century Aluminum Co.
6 Sec. Litig., 729 F.3d 1104, 1107 (9th Cir. 2013). The court concludes that additional
7 allegations provide context to the term “seasonal agricultural worker.” The FAC
8 alleges that T-Y operated agricultural nurseries, Statewide supplies labor to agricultural
9 nurseries and that “Plaintiffs cultivated plants, shrubs and trees which were produced
10 for movement in interstate commerce.” (FAC ¶31). Such allegations are minimally
11 sufficient to establish that Plaintiffs are “seasonal agricultural workers” for purposes
12 of AWPA.
13
The court also rejects (at the motion to dismiss stage of the proceedings)
14 Defendants’ argument that T-Y and Statewide are not covered under AWPA because
15 the nurseries operate continuously year round. Defendants’s argument is based on
16 Babitt Engineering & Machinery v. Agricultural Labor Relations Bd., 152 Cal.App.3d
17 310 (1984). However, in Babbitt the court of appeals had factual findings to review.
18 The issue there did not involve the review of a complaint under federal pleadings
19 requirements.1
20
The court also rejects Defendants’ arguments that the FAC’s allegations fail to
21 establish that T-Y is an “agricultural employer” and Statewide a “farm labor
22 contractor” for purposes of AWPA. The FAC provides context to this claim by
23 identifying that T-Y owns and operates a nursery, thus satisfying the statutory
24
25
26
27
1
The court notes that whether the work performed at the nursery is ordinarily
28 seasonal work is a factually intensive inquiry not appropriately resolved on a motion
to dismiss.
-6-
13cv3126
1 requirement of 29 U.S.C. §1802(2).2 With respect to Statewide, the complaint alleges
2 that Statewide is in the business of labor contracting, supplied labor to T-Y and
3 employed Plaintiffs for the nursery. See 29 U.S.C. §1802(6) and (7).3
4
In sum, the court concludes that the FAC complies with Rule 8 and provides
5 Defendants with sufficient notice such that they can respond to the complaint and
6 conduct discovery.
7 The State Law Claims
8
Defendant T-Y contends that the FAC fails to adequately identify which Plaintiff
9 is alleging which cause of action. This argument appears to form the basis for both the
10 Rule 12(b)(6) motion as well as the motion for a more definite statement brought
11 pursuant to Rule 12(e). The court denies this motion because, in the heading of each
12 claim, the complaint identifies which Plaintiff is alleging the claim against which
13 Defendant. Accordingly, the FAC complies with Rule 8(a) and the court denies this
14 motion.4 The court notes that an evidentiary based motion may narrow the scope of
15
16
2
17
The term “agricultural employer” means any person who owns or operates a
farm, ranch, processing establishment, cannery, gin, packing shed or nursery, or
who produces or conditions seed, and who either recruits, solicits, hires,
employs, furnishes, or transports any migrant or seasonal agricultural worker.
18
19
3
20
21
22
23
24
25
29 U.S.C. §1802(2) provides:
29 U.S.C. §1802 provides:
(6) The term “farm labor contracting activity” means recruiting, soliciting,
hiring, employing, furnishing, or transporting any migrant or seasonal
agricultural worker.
(7) The term “farm labor contractor” means any person, other than an
agricultural employer, an agricultural association, or an employee of an
agricultural employer or agricultural association, who, for any money or other
valuable consideration paid or promised to be paid, performs any farm labor
contracting activity.
26
4
To the extent the state law claims are asserted on behalf of “other employees,”
27 (FAC ¶62, 66,77,10), the court concludes that Plaintiffs, except with respect to any
future collective action brought pursuant to the FLSA claim, lack standing to bring the
28 action on behalf of non-parties to the litigation. Plaintiffs are simply not seeking to
represent a class within the meaning of Fed.R.Civ.P. 23. In this sense, the court strikes
-7-
13cv3126
1 Plaintiffs’ claims.
2
In sum, the court denies the motion to dismiss the FLSA claim (the first cause
3 of action), denies the motion to dismiss the AWPA claim (the second cause of action),
4 and denies the motion for a definite statement with respect to the state law claims (the
5 third through twelfth causes of action).
6
IT IS SO ORDERED.
7 DATED: October 29, 2014
8
Hon. Jeffrey T. Miller
United States District Judge
9
10
cc:
All parties
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
the phrase “other employees” from the identified paragraphs.
-8-
13cv3126
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?