Pedroza v. P.J. Pizza San Diego, LLC et al
Filing
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ORDER denying 10 Defendant's Motion to Dismiss. Signed by Judge M. James Lorenz on 5/15/2017. (sjt)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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PETER ROSS,
Case No.: 3:16-cv-02330-L-JMA
Plaintiff,
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v.
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ORDER DENYING DEFENDANT’S
MOTION [Doc. 10] TO DISMISS
P.J. PIZZA SAN DIEGO, LLC., et al,
Defendants.
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Pending before the Court is Defendant PJ Cleveland LLC’s (“Defendant”) motion
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to dismiss1 Plaintiff’s first amended complaint as to it. The Court decides the matter on
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the papers submitted and without oral argument. See Civ. L. R. 7.1(d.1). For the reasons
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stated below, the Court DENIES Defendant’s Motion.
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Defendant also moves to compel arbitration pursuant to the Arbitration Agreement Plaintiff executed
with co-defendants P.J. Pizza San Diego LLC and P.J. Pizza Holdings. In light of this Court’s previous
order finding the Arbitration Agreement invalid (See May 11, 2017 Order [Doc. 40]) the Court DENIES
Defendant’s present motion to enforce it.
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3:16-cv-02330-L-JMA
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I.
BACKGROUND
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The three defendants in this action collectively own and operate approximately
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twenty five Papa John’s Pizza franchise stores in the San Diego area. Plaintiff was a
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delivery driver for defendants. Like other delivery drivers employed by defendants,
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Plaintiff used his own vehicle to make deliveries and defendants provided financial
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reimbursement. Because defendants’ reimbursement formula underestimates the drivers’
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automobile expenses, Plaintiff’s effective hourly wage fell below that required by federal
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and California law. Accordingly, On November 11, 2016, Plaintiff filed an Amended
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Complaint against defendants alleging various putative class and collective action claims
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stemming from violations of California and federal labor laws. (See FAC [Doc. 3].)
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Defendant PJ Cleveland now moves to dismiss the First Amended Complaint as to it,
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arguing Plaintiff has not adequately alleged it was a joint employer. (See MTD [Doc.
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10].) Plaintiff opposes. (See Opp’n [Doc. 17].)
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II.
LEGAL STANDARD
The court must dismiss a cause of action for failure to state a claim upon which
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relief can be granted. Fed. R. Civ. P. 12(b)(6). A motion to dismiss under Rule 12(b)(6)
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tests the complaint’s sufficiency. See N. Star Int’l v. Ariz. Corp. Comm’n., 720 F.2d 578,
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581 (9th Cir. 1983). The court must assume the truth of all factual allegations and
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“construe them in the light most favorable to [the nonmoving party].” Gompper v. VISX,
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Inc., 298 F.3d 893, 895 (9th Cir. 2002); see also Walleri v. Fed. Home Loan Bank of
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Seattle, 83 F.2d 1575, 1580 (9th Cir. 1996).
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As the Supreme Court explained, “[w]hile a complaint attacked by a Rule 12(b)(6)
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motion to dismiss does not need detailed factual allegations, a plaintiff’s obligation to
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provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels and
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conclusions, and a formulaic recitation of the elements of a cause of action will not do.”
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Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955, 1964-65 (2007) (internal citations and
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quotation marks omitted). Instead, the allegation in the complaint “must be enough to
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3:16-cv-02330-L-JMA
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raise a right to relief above the speculative level.” Id. at 1965. A complaint may be
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dismissed as a matter of law either for lack of a cognizable legal theory or for insufficient
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facts under a cognizable theory. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530,
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534 (9th Cir. 1984).
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III.
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DISCUSSION
Defendant argues the Court should dismiss it from this action because the FAC
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does not adequately allege Defendant was a joint employer of Plaintiff.2 Joint
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employment generally exists when “1) the employers are not “completely disassociated”
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with respect to the employment of the individuals and 2) where one employer is
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controlled by another or the employers are under common control.” Chao v. A-One Med.
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Servs. Inc., 346 F.3d 908, 918 (9th Cir. 2003) (citing 29 C.F.R. § 791(b)(3).)
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Here, Plaintiff alleges that an individual named Christopher Kelleher manages all
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three defendants to this action and that all three defendants have integrated their
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operations such that they share in the right to make hiring and firing decisions and to
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direct all employees’ work efforts and compensation. (FAC ¶¶ 10, 25.) For purposes of
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this Fed. R. Civ. P. 12(b)(6) motion, these allegations, taken as true, plausibly suggest
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that Defendant may have been a joint employer of Plaintiff. See Creech v. P.J. Wichita,
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L.L.C., 2016 WL 4702376 (D. Kan. 2016) (reaching the same conclusion on a nearly
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identical complaint drafted by the same attorneys). Accordingly, the Court DENIES
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Defendant’s motion to dismiss.
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The Court notes that Defendant has withdrawn its motion to the extent it argued Plaintiff failed to
properly allege the elements of Federal Rule of Civil Procedure 23. (Reply [Doc. 27] 4:1–6.)
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IV.
CONCLUSION & ORDER
For the foregoing reasons the Court DENIES Defendant’s motion to dismiss.
IT IS SO ORDERED.
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Dated: May 15, 2017
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3:16-cv-02330-L-JMA
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