Pellegrini v. Huyssen, Incorporated, et al

Filing 23

ORDER on Motions to Dismiss [Doc. Nos. #9 , #10 , #11 ]. Signed by Judge Cathy Ann Bencivengo on 7/7/2017. (jjg)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 WILLIAM PELLEGRINI, individually and on behalf of others similarly situated, ORDER ON MOTIONS TO DISMISS [Doc. Nos. 9, 10, 11] Plaintiff, 13 14 Case No.: 3:17-cv-00135-CAB-(JMA) v. 18 HUYSSEN, INCORPORATED, a California corporation, bda SEDONA STAFFING; TEMPRO, INC., a Delaware corporation; L.A. LEASING, INC., an Illinois corporation; and DOES 3 through 100, inclusive, 19 Defendants. 15 16 17 20 21 This matter comes before the Court on Defendant Huyssen Incorporated’s 22 (“Huyssen’) motion to dismiss [Doc. No. 9], Defendant L.A. Leasing, Inc.’s (“L.A. 23 Leasing”) motion to dismiss [Doc. No. 10], and Defendant TemPro Services, Inc.’s 24 (“TemPro”) motion to dismiss [Doc No. 11]. The motions have been fully briefed, and the 25 Court finds them suitable for determination on the papers submitted and without oral 26 arguments in accordance with Civil Local Rule 7.1(d)(1). For the following reasons, 27 Defendants’ motions are granted in part and denied in part. 28 1 3:17-cv-00135-CAB-(JMA) 1 I. 2 On July 1, 2016, Plaintiff brought suit in the Superior Court of the State of California 3 (“the State Court Action”) against Defendant Huyssen asserting for wage and hour claims 4 in violation of the California Labor Code, the Code of Regulations, Industrial Wage 5 Commission (“IWC”) and California’s Unfair Competition Law (“UCL”). Cal Bus. & Prof 6 Code § 17200, et seq.; Civil Code § 3428. [Doc No. 1-21 (“the complaint”).] Background 7 On August 10, 2016, Plaintiff filed a First Amended Complaint (“FAC”) in the State 8 Court Action alleging similar wage and hour claims in violation of California law. [Doc. 9 No. 1-3.] On September 14, 2016, Huyssen filed its Answer to the FAC. [Doc. NO. 1-4.] 10 On November 11, 2016, Plaintiff filed amended the FAC to name TemPro Services, 11 Inc. (“TemPro”) and L.A. Leasing as Defendants. [Doc. No. 1-5.] On December 20, 2016, 12 Plaintiff filed a Motion for Leave to Amend the FAC [Doc. No. 1-7] that was opposed by 13 Huyssen [Doc. No. 1-9] and ultimately granted by the Superior Court [Doc. No. 1-11]. 14 The Second Amended Complaint (“SAC”) was filed on January 13, 2017. [Doc. 15 No. 1-12.] The SAC asserts that Defendants failed to compensate their employees as 16 required by federal and California law and includes a Fair Labor Standards Act (“FLSA”) 17 claim. Specifically, the SAC alleges Defendants Huyssen, L.A. Leasing and TemPro 18 jointly operate a staffing company that operates under the name Sedona Staffing and/or 19 Sedona Group. [Doc. No. 1-12 ¶ 1.] It alleged Defendants retained Plaintiff as an 20 employee and required him, and others similarly situated, to comply with Defendants’ 21 uniform policies to attend and participate in meetings and telephonic communications 22 relating to prospective assignments to Defendants clients, consult with Defendants 23 regarding the status of assignments, provide availability to work information to 24 Defendants, attend client and internal company interviews and orientations, and undertake 25 26 27 28 1 Document numbers and page references are to those assigned by CM/ECF for the docket entry. 2 3:17-cv-00135-CAB-(JMA) 1 training and travel without receiving any compensation for these activities. [Doc. No. 1- 2 12 ¶¶ 3-4, 23, 25-30.] 3 On January 25, 2017, Defendants Huyssen and L.A. Leasing removed the action to 4 this Court pursuant to 28 U.S.C. §§ 1441(a) and 1446(a). [Doc. No. 1.] On February 13, 5 2017, Defendants filed three separate motions to dismiss [Doc. Nos. 9, 10, 11.] All 6 Defendants seek dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6), with 7 Defendant TemPro also seeking to dismiss for lack of personal jurisdiction pursuant to 8 Rule 12(b)(2). On February 16, 2017, Plaintiff filed a combined opposition to Huyssen 9 and L.A. Leasing’s motions to dismiss [Doc. No. 16] and a separate response in opposition 10 to TemPro’s motion [Doc. No. 17.]. Defendants filed their replies. [Doc. Nos. 20, 21, 22.] 11 In light of the commonality of arguments in the motions to dismiss, the Court will consider 12 them together. 13 II. 14 Federal Rule of Civil Procedure 12(b)(2) allows a district court to dismiss an action 15 for lack of personal jurisdiction. “Where defendants move to dismiss a complaint for lack 16 of personal jurisdiction, plaintiffs bear the burden of demonstrating that jurisdiction is 17 appropriate.” Dole Foods Co. Inc. v. Watts, 303 F. 3d 1104, 1108 (9th Cir. 2002). “The 18 court may consider evidence presented in affidavits to assist in its determination and may 19 order discovery on the jurisdictional issues.” Doe v. Unocal Corp., 248 F.3d 915, 922 (9th 20 Cir. 2011) (citing Data Disc, Inc. v. Sys. Tech. Ass’n, Inc., 557 F.2d 1280 (9th Cir. 1977)). 21 When both parties support their respective positions with affidavits and the “district 22 court acts on the defendant’s motion to dismiss without holding an evidentiary hearing, the 23 plaintiff need make only a prima facie showing of jurisdictional facts to withstand a motion 24 to dismiss.” Id. (citing Ballard v. Savage, 65 F.3d 1495, 1498 (9th Cir. 1995)). See also 25 Data Disc, 557 F.2d at 1285 (“if Plaintiff’s proof is limited to written materials, it is Legal Standard 26 27 28 3 3:17-cv-00135-CAB-(JMA) 1 necessary only for these materials to demonstrate facts which support a finding of 2 jurisdiction in order to avoid a motion to dismiss.”).2 In other words 3 [plaintiff] need only demonstrate facts that if true would support jurisdiction over the defendant. Unless directly contravened, [plaintiff’s] version of the facts is taken as true, and conflicts between the facts contained in the parties’ affidavits must be resolved in [plaintiff’s] favor for purposes of deciding whether a prima facie case for personal jurisdiction exists. 4 5 6 7 Harris Rutsky & Co. Ins. Servs., Inc. v. Bell & Clements Ltd., 328 F.3d 1122, 1129 (9th 8 Cir. 2003) (citations omitted). 9 A court’s power to exercise personal jurisdiction over a non-resident defendant is 10 limited by two independent constraints: the applicable state personal jurisdiction statute 11 and constitutional principles of due process. Sher v. Johnson, 911 F.2d 1357, 1361 (9th 12 Cir. 1990); see also In re W. States Wholesale Natural Gas Antitrust Litig., 715 F.3d 716, 13 741 (9th Cir. 2013) (“[p]ersonal jurisdiction over a nonresident defendant is proper if 14 permitted by a state’s long-arm statute and if the exercise of that jurisdiction does not 15 violate federal due process.”) “Under California’s long-arm statute, California state courts 16 may exercise personal jurisdiction ‘on any basis not inconsistent with the Constitution of 17 this state or of the United States.’” Daimler AG v. Bauman, 134 S. Ct. 746, 753 (2014) 18 (quoting Cal. Civ. Proc. Code Ann. § 410.10 (West 2004)). 19 Under the Due Process Clause of the Fourteenth Amendment, to exercise personal 20 jurisdiction over an out-of-state defendant, the defendant must have “certain minimum 21 contacts with [the State] such that the maintenance of the suit does not offend traditional 22 notions of fair play and substantial justice.” Goodyear Dunlop Tires Operations, S.A. v. 23 24 25 26 27 28 2 If plaintiff makes the prima facie showing it does not necessarily mean that he proceeds to trial on the merits. “If the pleadings and other submitted materials raise issues of credibility or disputed questions of fact with regard to jurisdiction, the district court has the discretion to take evidence at a preliminary hearing in order to resolve the contested issues.” Data Disc, 557 F.2d at 1285 (citing 5 C. Wright & A. Miller, Federal Practice and Procedure s 1373, at pp. 714-15 (1969); 4 J. Moore, Federal Practice s 26.56(6). At p. 26-190 (1976)). If the matter proceeds to trial, plaintiff “must still prove the jurisdictional facts at trial by a preponderance of the evidence.” Id. at 1286 n. 2. 4 3:17-cv-00135-CAB-(JMA) 1 Brown, 564 U.S. 915, 923 (2011) (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 2 (1945) (internal quotations omitted)). This minimum contacts jurisdiction may be either 3 “general or all-purpose jurisdiction,” or “specific or case-linked jurisdiction.” Id. at 919 4 (citing Helicopteros Nacionales de Colombia S.A. v. Hall, 466 U.S. 408, 414 (1984)). “In 5 order for a court to exercise specific jurisdiction over a claim, there must be an ‘affiliation 6 between the forum and the underlying controversy, principally, [an] activity or an 7 occurrence that takes place in the forum State.’” Bristol-Myers Squibb Co. v. Superior 8 Court of Cal., S.F. Cnty., 137 S. Ct. 1773, 1781 (2017) (quoting Goodyear, 564 U.S. at 9 919). 10 Under Rule 12(b)(6), a party may bring a motion to dismiss based on the failure to 11 state a claim upon which relief may be granted. A Rule 12(b)(6) motion challenges the 12 sufficiency of a complaint as failing to allege “enough facts to state a claim to relief that is 13 plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). For purposes 14 of ruling on a Rule 12(b)(6) motion, the court “accept[s] factual allegations in the complaint 15 as true and construe[s] the pleadings in the light most favorable to the non-moving party.” 16 Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). But, a 17 “pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of 18 a cause of action will not do.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 19 Twombly, 550 U.S. at 555). 20 21 III. Discussion A. TemPro’s Motion to Dismiss Pursuant to Rule 12(b)(2). 22 Defendant TemPro moves to dismiss for lack of either specific or general personal 23 jurisdiction because it does not conduct or solicit any business in the State of California. 24 [Doc. No. 11 at 12-13.] Plaintiff does not dispute that TemPro lacks sufficient contacts 25 with California to support general jurisdiction, but asserts that TemPro operates in 26 California as Sedona Staffing and the Sedona Group and is therefore subject to specific 27 personal jurisdiction. [Doc. No. 17 at 10-13.] In the alternative, Plaintiff argues that L.A. 28 Leasing and Huyssen’s contacts related to the San Diego branch should be imputed to 5 3:17-cv-00135-CAB-(JMA) 1 TemPro. [Doc. No. 17 at 13-18.] Since Plaintiff has effectively conceded that general 2 jurisdiction does not exist, the Court will limit its inquiry to whether it has specific 3 jurisdiction over TemPro. 4 “[S]pecific jurisdiction is confined to adjudication of ‘issues deriving from, or 5 connected with, the very controversy that establishes jurisdiction.’” Goodyear Dunlop, 6 564 U.S. at 919. See also Daimler AG, 134 S. Ct. at 758 (the focus is on the “relationship 7 among the defendant, the forum, and the litigation.”). “When there is no such connection, 8 specific jurisdiction is lacking regardless of the extent of a defendant’s unconnected 9 activities in the State.” Bristol-Myers Squibb, 137 S. Ct. at 1781. The Ninth Circuit uses 10 a three-prong test to determine whether a non-resident defendant is subject to specific 11 personal jurisdiction: (1) [t]he non-resident defendant must purposefully direct his 12 activities or consummate some transaction with the forum or resident thereof; or perform 13 some act by which he purposefully avails himself of the privilege of conducting activities 14 in the forum, thereby invoking the benefits and protections of its laws; (2) the claim must 15 be one which arises out of or relates to the defendant’s forum-related activities; and (3) the 16 exercise of jurisdiction must comport with fair play and substantial justice, i.e. it must be 17 reasonable. Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 802 (9th Cir. 2004). 18 The plaintiff bears the burden of satisfying the first two requirements and if successfully 19 met, the “burden then shifts to the defendant to ‘present a compelling case’ that the exercise 20 of jurisdiction would not be reasonable.” Id. at 801-802. 21 Here, TemPro is a Delaware corporation with its principal place of business in 22 Moline, Illinois. [Doc. No. 11-2 at ¶ 2.] TemPro is wholly owned by John Enterprises 23 Limited an Illinois corporation. [Doc. No. 13.] TemPro asserts that with one exception, 24 TemPro has not had any California employees since December 31, 2000. [Doc. No. 11-2 25 at ¶ 2.] TemPro declares that it does not have any offices in California, does not have any 26 bank account in California, is not licensed to do business in California, has no agent for 27 service of process in California, does not lease or own any real estate in California, and 28 does not have any contracts with any businesses based in California. [Id. at ¶¶ 6-11.] 6 3:17-cv-00135-CAB-(JMA) 1 Further, TemPro attests that Plaintiff is not and never has been employed by TemPro and 2 that it does not have any ownership interest in L.A. Leasing or Huyssen and L.A. Leasing 3 and Huyssen do not have an ownership interest in TemPro. [Id. at ¶¶ 5, 12.] 4 In opposition, Plaintiff alleges that jurisdiction exists in California because TemPro 5 operates in California as Sedona Staffing and the Sedona Group. Plaintiff asserts that 6 specific jurisdiction is warranted because (1) through these entities TemPro purposefully 7 avails itself in California by openly recruiting agents online and maintaining a staffing 8 office in San Diego; (2) the action arises out of TemPro’s activities in California because 9 Plaintiff’s claims are derived from his employment relationship with the Sedona Group 10 that was formed in the San Diego branch office; and (3) exercise of jurisdiction over 11 TemPro would be reasonable. [Doc. No. 17 at 10-13.] Defendant TemPro summarily 12 dismisses Plaintiff’s argument that The Sedona Group and TemPro are one and the same, 13 asserting that the absence of any Secretary of State Corporate Documents is evidence that 14 The Sedona Group is not a corporate entity. 15 In support of his argument, Plaintiff offers a declaration by Lacy Wells, an associate 16 with the law firm of Nicholas & Tomasevic, LLP, counsel of record for Plaintiff, and a 17 number of accompanying exhibits3. [Doc. No. 17-5 at ¶ 1.] Plaintiff posits that the exhibits 18 demonstrate that: (1) TemPro’s principal place of business is at 612 Valley View Drive, 19 Moline, IL; (2) the Sedona Compass website4 is registered at the same mailing address as 20 TemPro; (3) a billboard identifying the Sedona Group is located at the 612 Valley View 21 22 3 23 24 25 26 27 The accompanying exhibits were: 1) a copy of the Illinois Secretary of State Corporate Detail Report on TemPro (Exhibit E); (2) internet search results for the Sedona Group (Exhibit F); (3) a Google maps image of TemPro’s principal location (Exhibit G); a printout of Michelle Kahley’s LinkedIn profile (Exhibit H); a time line of the Sedona Group (Exhibit I); a copy of the Illinois Secretary of State Corporate Detail Report on L.A. Leasing (Exhibit N); copies of pages from the Sedona Group’s website including Sedona Staffing Partner Opportunities, Total Workforce Management Solutions, Total Workforce Management, Sedona Staffing Locations – San Diego, CA, About Us (Exhibits J, K, L, M, P); a copy of Ms. Kahley’s LinkedIn profile; a copy of an article titled “After 25 years, The Sedona Group rocks on” (Exhibit R.). The Sedona Compass website/database which used by Plaintiff’s initial point of contact at the Sedona Staffing Office is operated and registered to the Sedona Group. 4 28 7 3:17-cv-00135-CAB-(JMA) 1 Drive address; (4) Rick John is the President of the Sedona Group and TemPro; (5) Ms. 2 Kahley’s LinkedIn profile indicates that she is the “Director of Operations at The Sedona 3 Group”; (5) In 1986 TemPro was formed by the Willard Brothers, which eventually 4 becomes The Sedona Group, encompassing three divisions – Sedona Staffing Services, 5 Sedona Technologies and Sedona Medical; (6) In 1998, TemPro rebrands as Sedona 6 Staffing Services. 7 1. Purposeful availment 8 “Purposeful availment analysis examines whether the defendant’s contacts with the 9 forum are attributable to his own actions or are solely the actions of the plaintiff.” Sinatra 10 v. National Enquirer, 854 F.2d 1191, 1195 (9th Cir. 1988). To successfully demonstrate 11 this, Plaintiff must show that TemPro “engage[d] in some form of affirmative conduct 12 allowing or promoting the transaction of business within the forum state.” Gray & Co. v. 13 Firstenberg Machinery Co., 913 F.2d 758, 760 (9th Cir. 1990) (citation omitted). In 14 contract cases the inquiry typically focuses on “whether a defendant ‘purposefully avails 15 itself of the privilege of conducting activities’ or ‘consummates a transaction’ in the forum, 16 focusing on activities such as delivering goods or executing a contract.” Yahoo! Inc. v. La 17 Ligue Contre Le Racisme Et L’Antisemitisme, 433 F.3d 1199, at 1206 (9th Cir. 2006) 18 (citing Schwarzenegger, 374 F.3d at 802). 19 The complaint alleges that TemPro dba Sedona Staffing and/or Sedona Group along 20 with the other Defendants, jointly operates a staffing company that failed to compensate 21 their employees, including Plaintiff, as required by federal and California law. [Doc. No. 22 1-12 ¶ 1.] Further, Plaintiff alleges that TemPro, operating as The Sedona Group, openly 23 recruits agents like Huyssen to open up new staffing office locations on its website. [See 24 Doc. No. 17-5 at ¶ 8 and Ex. J.] Additionally, Plaintiff argues that TemPro’s purposeful 25 availment is demonstrated though the websites of The Sedona Group and Sedona Staffing 26 Corporate. Plaintiff contends that links on The Sedona Group website transfer users to the 27 website of Sedona Staffing Corporate and users can select office locations from the Sedona 28 Staffing Corporate Site. [See Id. at ¶ 9, Exs. K, L, M.] According to Plaintiff, the 8 3:17-cv-00135-CAB-(JMA) 1 Clairemont Mesa Blvd Location listed as an office location on the Sedona Staffing 2 Corporate website is where Plaintiff visited and was hired. [See Id. at ¶ 9, Exs. K, L, M; 3 Doc. No. 17-1 at ¶ 2, Ex. A.] Plaintiff also asserts that San Diego and Carlsbad, two 4 separate California locations, are listed on the Sedona Staffing Corporate’s website. [See 5 Wells Decl. ¶ 9.] In response, Defendant TemPro states “Plaintiff’s mantra throughout his 6 Response that ‘TemPro operates as the Sedona Group’ is conclusory unsupported by the 7 facts, and does not make it so.” [Doc. No. 22 at 7:3-4.] The Court disagrees. Plaintiff has 8 submitted an affidavit and accompanying exhibits that allege that TemPro operates as The 9 Sedona Group and Sedona Staffing, that The Sedona Group and Sedona Staffing have 10 offices in California though which Plaintiff, a California resident, sought temporary 11 employment, and The Sedona Group recruits partners within California. Moreover, in 12 deciding whether Plaintiff has established his prima facie case for personal jurisdiction, the 13 Court resolves conflicts between facts contained in the parties’ affidavits in Plaintiff’s 14 favor. Harris Rutsky, 328 F.3d at 1129. Accordingly, the Court finds that TemPro, 15 operating as Sedona Staffing and The Sedona Group, purposefully avails itself of the 16 privilege of conducting business in California. 17 2. Relatedness of the Claim and Contacts 18 The second prong of the Schwarzenegger analysis requires the court to determine 19 whether the claim arises from the defendant’s forum-related activities. See 20 Schwarzenegger, 374 F.3d at 801-802. Courts make this determination by “apply[ing] a 21 but for test.” See Menken v. Emm, 503 F.3d 1050, 1058 (9th Cir. 2007) (plaintiff would 22 not have suffered an injury “but for” defendant’s forum-related conduct). 23 The Court concludes that but for TemPro’s, operating as The Sedona Group and/or 24 Sedona Staffing, contacts with California Plaintiff’s claims against it would not have 25 arisen. Plaintiff’s claims arise out of an employment relationship that was allegedly formed 26 in The Sedona Group’s San Diego branch office. [Doc. No. 17-1 at ¶ 9; Doc. No. 17-5 at¶ 27 9, Ex. M.] Furthermore, it is alleged that The Sedona Group owns the Sedona Compass 28 website that catalogs temporary workers’ information, including Plaintiff’s, in California. 9 3:17-cv-00135-CAB-(JMA) 1 [Wells Decl. ¶¶ 2, 4, Exs. F, M.] Given that Defendant TemPro does not dispute this, the 2 Court concludes that Plaintiff has carried his burden on the issue. See Harris Rutsky, 328 3 F.3d at 1129. 4 3. Reasonableness 5 The third part of the Schwarzenegger test requires a broad inquiry into the overall 6 reasonableness and fairness of exercising personal jurisdiction. Schwarzenegger, 374 F.3d 7 at 801-802. The burden is on defendants to “present a compelling case” that exercising 8 personal jurisdiction over it would be unreasonable. Burger King, 471 U.S. at 476-78. In 9 making this inquiry the court considers: (1) the extent of purposeful interjection into the 10 forum state; (2) the burden on the defendant of defending in the forum; (3) the extent of 11 conflict with the sovereignty of defendant's state; (4) the forum state's interest in 12 adjudicating the dispute; (5) the most efficient judicial resolution of the controversy; (6) 13 the importance of the forum to plaintiff's interest in convenient and effective relief; and (7) 14 the existence of an alternative forum. Menken, 503 F.3d at 1058; Burger King, 471 U.S. 15 at 476-77. 16 In this case, the first factor as to whether Defendant TemPro has purposefully 17 injected itself into California affairs is directly disputed by the parties but, as discussed 18 supra, the Court finds that TemPro has purposefully availed itself in California. Turning 19 to the second factor, Defendant TemPro contends that litigating the case in California 20 would constitute a burden on TemPro as it has no offices or employees in California. 21 Admittedly, traveling to California to litigate this matter will create some burden due to 22 travel and other expenses, “with the advances in transportation and telecommunication and 23 the increasing interstate practice of law, any burden is substantially less than in days past.” 24 Menken, 503 F.3d at 1060 (quoting CE Distrib., LLC v. New Sensor Corp., 380 F.3d 1107, 25 1112 (9th Cir. 2004)). Although litigating here would not be unduly burdensome, this 26 factor weighs slightly in favor of TemPro. As to the third factor, Defendant TemPro 27 concedes that there is no conflict of sovereignty, therefore this factor favors Plaintiff. See 28 10 3:17-cv-00135-CAB-(JMA) 1 Menken, 503 F.3d at 1060 (finding third factor weighed in favor of the plaintiff because 2 the parties agreed that a conflict of sovereignty did not exist). 3 Similarly, assuming as true that TemPro operates as The Sedona Group and/or 4 Sedona Staffing, the fourth factor weighs in favor of exercising jurisdiction over 5 Defendant. Plaintiff is a California resident, who allegedly was employed by The Sedona 6 Group and/or Sedona Staffing, performed work on its behalf within California, and did not 7 get paid in accordance with the California Labor Code. See Burger King, 471 U.S at 473 8 (“A State generally has a ‘manifest interest’ in providing its residents with a convenient 9 forum for redressing injuries inflicted by out of state actors.”) The Court determines the 10 fifth factor to be neutral because based on the current record, it is difficult to definitively 11 determine which would be the most efficient forum for resolution of this dispute. The sixth 12 factor weighs in Plaintiff’s favor as it will be surely far easier for Plaintiff to litigate this 13 matter in California, the forum state where he resides. As to the seventh factor, Defendant 14 TemPro does not offer an alternative forum, instead appearing to take the position that 15 since there is no viable controversy that involves TemPro no alternative forum exists. 16 Therefore this final factor weighs in favor of Plaintiff. 17 After balancing the seven factors, the Court finds that Defendant TemPro has failed 18 to present a compelling case that the Court’s exercise of jurisdiction would be 19 unreasonable. 20 In light of above, the Court concludes that Plaintiff has met his burden and 21 demonstrated facts that, if true, would support jurisdiction over Defendant TemPro in order 22 to survive the motion to dismiss. See, e.g., Data Disc, 557 F.2d at 1285. (“if Plaintiff’s 23 proof is limited to written materials, it is necessary only for these materials to demonstrate 24 facts which support a finding of jurisdiction in order to avoid a motion to dismiss.”). 5 25 26 27 5 28 In light of this holding, the Court declines to address the alternative alter ego and agency arguments Plaintiff made in support of his position that this Court should exercise personal jurisdiction over TemPro. 11 3:17-cv-00135-CAB-(JMA) 1 Accordingly, Defendant TemPro’s Motion to Dismiss for lack of personal jurisdiction is 2 DENIED. 3 B. Defendants’ motions to dismiss pursuant to Rule 12(b)(6) 4 Defendants Huyssen and L.A. Leasing both move under Federal Rule of Civil 5 Procedure 12(b)(6) to dismiss the SAC in its entirety. [Doc. Nos. 10, 11.] Defendant 6 TemPro joins in and incorporates by reference Huyssen and L.A. Leasing’s motions. [Doc. 7 Nos. 11, 11-1 at 19.] The motions assert multiple grounds as to why each of Plaintiff’s 8 causes of action fail to state claims upon which relief can be granted. Because the Rule 9 12(b)(6) arguments made by each Defendant individually are substantially similar, if not 10 identical, the Court will consider them together. 11 12 The Court will address the FLSA claim first before turning to each state law cause of action. 13 1. Sixth Cause of Action for Failure to Pay Minimum Wages under the Fair Labor Standards Act (“FLSA”) 14 15 Defendants argue that Plaintiff’s sixth claim is barred by the applicable statute of 16 limitations, and does not contain sufficient allegations of underlying facts to allow 17 Defendants to defend themselves effectively. [Doc. No 9-1 at 14-24; Doc. No. 10-1 at 13- 18 22.] 19 Generally an action under the FLSA must be commenced within two years after the 20 cause of action has accrued6, but actions arising out of willful violations have a three year 21 limitations period. 22 limitations under the FLSA an action: 29 U.S.C. § 255(a). For purposes of determining the statute of Shall be considered to be commenced on the date when the complaint is filed; except in the case of a collective or class action under the [FLSA] it shall be considered to be commenced in the case of any individual claimant- 23 24 25 26 27 28 “A new cause of action accrues at each payday immediately following the work period for which compensation is owed.” Batiz v. Am. Commercial Sec. Servs., 776 F. Supp. 2d 1087, 1096 (C.D. Cal. 2011) (citing O’Donnell v. Vencor Inc., 466 F.3d 1104, 1113 (9th Cir. 2006). 6 12 3:17-cv-00135-CAB-(JMA) 1 a) on the date when the complaint is filed, if he is specifically named as a party plaintiff in the complaint and his written consent to become a party plaintiff is filed on such a date in the court in which the action is brought; or (b) if such written consent was not so filed or if his name did not so appear – on the subsequent date on which such written consent is filed in the court in which the action was commenced. 2 3 4 5 6 7 8 9 10 11 12 13 29 U.S.C. §256(a)-(b). In this case, the original complaint was filed on July 1, 2016, and the FLSA claim and Plaintiff’s written consent were filed in this Court on January 13, 2017. Defendants argue that Plaintiff’s FLSA claim is time barred because it began accruing in September 2013 and Plaintiff did not file the consent form until January 13, 2017, more than three years later. In support of this position, Defendants rely on cases from outside the Ninth Circuit that are distinguishable from the case at bar.7 [Doc. Nos. 9-1 at 15-19; 10-1 at 1418.] 14 15 7 16 17 18 19 20 21 22 23 24 25 26 27 28 In Local 589, Amalgamated Transit Union v. Mass. Bay Transp. Authority, plaintiffs argued unsuccessfully for leave to amend to preserve the rights and claims of individuals against the applicable statute of limitations because of the time consuming nature of class certification. Local 589, Civil Action No. 13-cv-11455-ADB, 2015 WL 7428537 (D. Mass. Nov. 20, 2015). The court denied Plaintiffs’ motion to amend the complaint to add an additional 1,600 employees on the grounds of plaintiffs’ undue delay and the prejudice defendant would face if 1,600 plaintiffs were added so late in the case. The court explained that: 1) plaintiffs had waited two-and-a-half years before filing the motion; (2) a previous motion to amend was granted; (3) summary judgment motions had been briefed and decided; (4) discovery was closed; (5) and class certification had been denied three times. Id. at * 3. District Judge Burroughs found that amending the complaint would have no effect of the statute of limitations because plaintiffs had had over two years to file consent forms and over sixteen hundred forms had been filed, noting that “[u]nder the FLSA, what matters for statute of limitations purposes is when an individual’s consent form is filed – not when the class is certified and not when individuals are added as named plaintiffs.” Id. In Harkins v. Riverboat Serv., Inc., the court granted defendants’ motion for partial summary judgment and motion to strike and bar the proposed persons as plaintiffs. No. 99 C 123, 2002 WL 32406581 (N.D. Ill. May 17, 2002). After analyzing the case law regarding when an FLSA collective action is deemed commenced the court reasoned that “[s]ection 256 is expressly conjunctive, it requires that plaintiffs in a collective action, including the named plaintiffs, file a written consent and that suit is not ‘commenced’ for statute of limitations purposes until such consent is filed.” (quoting Salazar v. Brown, No. G87-961, 1996 WL 302673, at *10 (W.D. Mich. Apr. 9, 1996)). Id. at *2. Concluding that this language mandates that “written consents not filed with the complaint do not relate back” the court looked to the employment dates of the three named plaintiffs who had filed the requisite written consents in order to calculate when the statute of limitations expired. Id. at * 3. 13 3:17-cv-00135-CAB-(JMA) 1 Regarding the statute of limitations, Plaintiff argues that the FLSA cause of action 2 relates back to the earlier filed complaint when the amending party satisfies Federal Rule 3 of Civil Procedure 15. Defendants counter that the commencement of the FLSA claim 4 does not relate back to the filing dates of the earlier complaints. [Doc. Nos. 9-1 at 18-19; 5 10-1 at 17-19.] The Court agrees with Plaintiff. In response, Defendants rely on cases 6 from the Second Circuit that are not binding on this Court and involve circumstances 7 markedly different from the case at bar.8 8 “An otherwise time-barred claim in an amended pleading is deemed timely if it 9 relates back to the date of a timely original pleading.” ASARCO, LLC v. Union Pac. R. 10 Co., 765 F.3d 999, 1004 (9th Cir. 2014). “Rule 15(c) of the Federal Rules of Civil 11 Procedure governs when an amended pleading ‘relates back’ to the date of a timely filed 12 original pleading and is thus itself timely even though it was filed outside an applicable 13 statute of limitations.” Krupski v. Costa Crociere S.p.A, 560 U.S. 538, 541 (2010). Rule 14 15(c) provides that an amendment to a pleading relates back to the date of the original 15 pleading when: 16 17 18 19 20 21 22 23 24 25 26 27 28 8 In Lopez v. Setauket Car Wash & Detail Ctr., the magistrate judge recommended that plaintiffs be allowed to amend the complaint and add an additional four proposed named plaintiffs. No. CV 12-6324 (LDW) (ARL), 2014 WL 7506801, at * 3 (E.D.N.Y. Oct. 2, 2014). Further, the magistrate judge recommended that plaintiffs’ request to have the opt-in plaintiffs’ claims relate back to the date of the original complaint be denied, viewing Plaintiffs decision to wait to amend until after the court’s decision on the motion to conditionally certify the class, as a strategy to make “an end-around the FLSA statute of limitations in order to expand the scope of damages.” Id. at 4. The district court judge adopted in part and modified in part Judge Lindsay’s R & R, but the issue of whether the FLSA claims could relate back was no longer before the court because “in their objections, [p]laintiffs agree[d] that the FLSA claims [of the additional opt in named plaintiffs] do not relate back and that those claims are tolled only upon the filing of each Plaintiff’s written consent.” Lopez, 2015 WL 136336 at *3. Similarly, in Perkins v. S. New England Tel. Co., plaintiff filed a motion for relation back of newly named plaintiffs FLSA claims in a representative capacity. Civil Action No. 3:07-cv-967 (JCH), 2009 WL 3754097 (D. Conn. Nov. 4, 2009). The court found that, although each plaintiff’s individual FLSA claims did not commence until the date that their consent form was filed with the court, the newly added parties could act as representatives of the collective action prior to the filing of their individual consent forms because “[t]he language of section 256(b) clearly contemplates a situation in which a named plaintiff does not file the consent form until after the complaint is filed . . . section 256(b) makes clear that the filing of consent forms can be independent of the filing of a complaint.” Id. at 3. 14 3:17-cv-00135-CAB-(JMA) 1 2 3 4 5 (A) the law that provides the applicable statute of limitations allows relation back; (B) the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out – or attempted to be set out – in the original pleading. Fed. R. Civ. P. 15(c)(1)(A)-(B). 6 While the relation back doctrine of Rule 15(c) is to be applied liberally “there must 7 nonetheless be some basis for application of the doctrine.” Percy v. S.F. Gen. Hosp., 841 8 F.2d 975, 980 (9th Cir. 1988). Therefore, courts took to whether “the original and amended 9 pleadings [] share a common core of operative facts so that the adverse party has fair notice 10 of the transaction, occurrence, or conduct called into question.” ASARCO, 765 F.3d at 11 1004 (quoting Martell v. Trilogy Ltd., 872 F.2d 322, 325 (9th Cir. 1989)). “So long as a 12 party is notified of litigation concerning a particular transaction or occurrence, that party 13 has been given all the notice that Rule 15(c) requires.” ASARCO, 765 F.3d at 1006. 14 Here, Plaintiff first asserted his FLSA claim on January 13, 2017. [Doc. No. 1-12.] 15 Plaintiff’s written opt-in consent form to become a party plaintiff was dated December 21, 16 2016. [Doc. No. 1-12, Ex. A at 27.] The first and second iterations of Plaintiff’s complaint 17 asserted wage and hour claims based on Plaintiff’s employment by Sedona Staffing in 18 violation of California Labor laws. The SAC alleges that Plaintiff sought employment 19 through Defendants from approximately September 2013 to April 2014 and that “during 20 the relevant periods, Defendants maintained and enforced a uniform policy by which they 21 regularly and consistently violated the FLSA.” [Doc. No. 1-12 at ¶¶ 8, 31, 37.] Therefore, 22 the Court finds that all of the claims spring from the same alleged core facts regarding 23 Plaintiff’s employment and will likely be proved by the same kind of evidence. See 24 O’Donnell v. Vencor Inc., 466 F.3d 1104, 1112 (9th Cir. 2006) (allowing relation back 25 “[b]ecause the allegations and type of evidence necessary for [Plaintiff] to succeed on her 26 EPA claims are identical to what she alleged in her [earlier] complaint”); Martell, 872 F.2d 27 322, 325-26 (finding that amended complaint related back where amended complaint 28 added new theory of recovery based on facts alleged in original complaint). 15 3:17-cv-00135-CAB-(JMA) 1 However, L.A. Leasing and TemPro were not added as parties to this action until 2 Plaintiff filed two Amendments to the complaint on November 11, 2016. The Court 3 therefore finds that the earliest “they were on fair notice of the transaction, occurrence, or 4 conduct called into question” was November 11, 2016. ASARCO, 765 F.3d at 1004. See 5 also Percy, 841 F.2d at 980 (noting that relation back doctrine has been applied when 6 “defendant was given adequate notice by the prior pleading of the facts that caused the 7 injury alleged in the amended pleading.”). Accordingly, the Court concludes that as to 8 Huyssen, the January 13, 2017 amendment adding the FLSA claim relates back to the 9 original complaint filed on July 1, 2016. As to L.A. Leasing and TemPro, the Court 10 concludes the FLSA claim relates back to the filing of the amendment to the First Amended 11 Complaint on November 11, 2016 when they were named as Defendants. 12 The Court also rejects Defendants argument that Plaintiff has not plausibly alleged 13 a willful violation. “A violation of the FLSA is willful if the employer “knew or showed 14 reckless disregard for the matter of whether its conduct was prohibited by the FLSA.” 15 Chao v. A-One Medical Services, 346 F.3d 908, 918 (9th Cir. 2003). Here, the SAC alleges 16 that Defendants knowingly, willfully, and intentionally” failed to compensate Plaintiff. 17 [Doc. No. 1-12 at ¶¶ 105, 106.] Further, the SAC also contains allegations that Defendants 18 dictated and enforced common employment policies, decided to adopt and implement 19 policies in violation of the FLSA, directly or indirectly exercised control over Plaintiff’s 20 wages and regularly and consistently violated the Act. [Doc. No. 1-12 at ¶¶ 3, 13, 20, 22, 21 37.] These allegations sufficiently plead a willful violation. See Rivera v. Peri & Sons 22 Farms, Inc., 735 F.3d 892, 903 (9th Cir. 2013) (an allegation that defendants violations 23 were “deliberate, intentional, and willful” are sufficient to survive a motion to dismiss 24 because “[a]t the pleading stage, a plaintiff need not allege willfulness with specificity.”) 25 (citing Fed. R. Civ. P. 9(b) (“Malice, intent, knowledge and other conditions of a person’s 26 mind may be alleged generally.”)). See also Von Saher v. Norton Simon Museum of Art at 27 Pasadena, 592 F.3d 954, 969 (9th Cir. 2010) (under Rule 12(b)(6) untimely claims may be 28 dismissed “only when the running of the statute [of limitations] is apparent on the face of 16 3:17-cv-00135-CAB-(JMA) 1 the complaint.”) Thus, applying the three year statute of limitations to the FLSA claims, 2 the Court concludes that as to Huyssen the alleged acts occurring between September 2013 3 and April 2014 are not barred by the statute of limitations. Further, the Court concludes 4 that as to L.A. Leasing and TemPro, the acts alleged to have occurred between November 5 11, 2013 and April 2014 are not time barred.9 6 Finally, Defendants assert that Plaintiff’s FLSA claim contains bare allegations not 7 supported by sufficient facts. Defendants argue that Plaintiff’s failure to allege that he did 8 not receive a minimum wage for the hours worked during the week he had interviews or 9 was attending orientations warrants dismissal of this claim. In support of their position, 10 Defendants rely on cases where plaintiff was asserting a claim for failure to pay overtime 11 wages, but here Plaintiff is not asserting a failure to pay overtime, he is asserting that he 12 was not paid for time spent conducting a variety of work related activities and work related 13 travel time. 14 “Where an individual exercises control over the nature and structure of the 15 employment relationship, or economic control over the relationship, that individual is an 16 employer within the meaning of the Act, and is subject to liability.” Lambert v. Ackerley, 17 180 F.3d 997, 1012 (9th Cir. 1999) (internal quotation marks and citation omitted). The 18 FLSA requires employers to pay employees for all “work” they perform.” 29 U.S.C. §§ 19 206-207.10 Exceptions to the compensable work requirement of the FLSA are laid out in 20 the Portal-to-Portal Act. See 29 U.S.C. § 254(a).11 21 22 23 Because the Court is not dismissing Plaintiff’s FLSA claim at this time, it need not address the equitable tolling arguments. 24 10 9 25 26 27 28 “The nature of the employees’ duties is a question of fact, and the application of the FLSA to those duties is a question of law.” Ballaris v. Wacker Siltronic Corp., 370 F.3d 901, 910 (9th Cir. 2004). 11 Activities excluded from the FLSA coverage are: (1) walking, riding, or traveling to and from the actual place of performance of the principal activity or activities which such employee is employed to perform, and (2) activities which are preliminary to or postliminary to said principal activity or activities, which occur either prior to the time on any particular workday at which such employee commences, or subsequent to the time on any particular workday at which he ceases, such principal activity or activities. 17 3:17-cv-00135-CAB-(JMA) 1 “In order to determine whether Plaintiff “has stated a plausible claim under the 2 FLSA, [the court] look[s] to Rule 8 of the Federal Rules of Civil Procedure.” Landers v. 3 Quality Communications, Inc., 771 F.3d 638, 640 (9th Cir. 2014). The Ninth Circuit has 4 adopted a three step approach to establish whether an activity is compensable within the 5 definitions of the FLSA and Portal-to-Portal Act. See Bamonte v. City of Mesa, 598 F.3d 6 1217, 1224 (9th Cir. 2010). This approach requires the Court to consider: “(1) whether the 7 activity constituted “work,” (2) whether the activity was an “integral and indispensable” 8 duty, and (3) whether the activity was de minimis.” Id. “Work” is defined as “physical or 9 mental exertion ... controlled or required by the employer and pursued necessarily and 10 primarily for the benefit of the employer.” Alvarez v IBP, Inc., 339 F.3d 894, 902 (9th Cir. 11 2003) (italics added). An activity is “integral and indispensable” if that activity is 12 “necessary to the principal work performed and done for the benefit of the employer.” Id. 13 (citing Barrentine v. Arkansas–Best Freight Systems, Inc., 750 F.2d 47, 50 (8th Cir.1984)). 14 An activity is de minimis “when the matter in issue concerns only a few seconds or minutes 15 of work beyond the scheduled working hours [] such trifles may be disregarded for split- 16 second absurdities are not justified by the actualities or working conditions or by the policy 17 of the FLSA.” Id. at 903 (quoting Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 692 18 (1946)) (internal quotation marks and changes omitted). 19 determining whether a claim is de minimis is the amount of daily time spent on the 20 additional work.” Lindow v. U.S., 738 F.2d 1057, 1062 (9th Cir. 1983). “An important factor in 21 Here, the SAC alleges that Defendants, jointly, required Plaintiff and his coworkers 22 to participate and perform numerous work related activities including “attend and 23 participate in meetings and telephonic communications relating to the prospective 24 assignments to Defendants’ clients, consult with Defendants regarding the status of 25 26 27 28 29 U.S.C. § 254(a). See, e.g., Abbe v. City of San Diego, Nos. 05CV1629 DMS (JMA), 06CV0538 DMS (JMA), 2007 WL 4146696, at *9 (S.D. Cal. Nov. 9, 2007) (citing 29 C.F.R. § 790.7(c)) (“Walking and travel time is compensable if it takes the employee from one principle activity to another.”) 18 3:17-cv-00135-CAB-(JMA) 1 assignments, provide information to Defendants regarding their availability, attend 2 interviews with Defendants’ clients, undertake training as well as undertake travel and 3 miscellaneous tasks related to each of the aforementioned activities.” [Doc. No. 1-12 at ¶ 4 23.] Further, it is alleged that Defendants required their employees to participate in internal 5 interviews, attend client orientations and/or interviews, participate in client specific 6 training, complete tasks pertaining to background checks as required by Defendants’ 7 clients, “such as the execution of forms and the taking of fingerprints, having photographs 8 taken for clients’ internal records and for identification badges, review of the clients’ safety 9 policies and execution of job-related documents” and undergo skills testing when placed 10 on temporary assignment to a client. [Id. at ¶¶ 25, 26, 28, 29.] As alleged in the complaint, 11 the requirements regarding placement at Defendants’ client’s offices were set forth in 12 Defendants’ Policy Documents, including the training and information materials 13 Defendants’ provided to their employees, Defendants’ code of conduct and Defendants’ 14 employee handbook. [Id. at ¶¶ 22.] 15 Plaintiff has sufficiently alleged an employment relationship. See Helm v. 16 Alderwoods, 696 F. Supp. 2d 1057, 1074 (N.D. Cal. 2009) (allegations that each of the 17 defendants controlled the manner in which plaintiff provided services and had the authority 18 to terminate plaintiffs’ employment were sufficient to survive a motion to dismiss). 19 Further, the activities Plaintiff asserts he was not compensated for involved physical or 20 mental exertion, were required and controlled by his employer, and benefitted his 21 employer. Alvarez, 339 F.3d at 902. In addition, the activities alleged presumptively 22 benefitted Defendants because their performance was required by Defendants and their 23 clients. Id. As to the whether these activities were de minimis, while the complaint is silent 24 on the time actually spent, the Court infers for the purpose of the motion to dismiss that 25 any interviews, meetings and training Plaintiff attended would have taken more than a few 26 seconds or minutes. Lindow, 738 F.2d at 1062-63 (in determining whether a claim is de 27 minimis “common sense must be applied to the facts of each case” and the court “will 28 consider the size of the aggregate claim” because “[c]ourts have granted relief for claims 19 3:17-cv-00135-CAB-(JMA) 1 that might have been minimal on a daily basis but, when aggregated, amounted to a 2 substantial claim.”) (collecting cases). 3 Thus, viewed as claim for failure to pay wages for compensable time, the Court finds 4 that Plaintiff has adequately alleged that Defendants failed to pay him and other members 5 of the proposed class for work and travel they performed on Defendants behalf. 6 Consequently, the Court DENIES Defendants’ motions to dismiss the FLSA Claim. 7 8 2. First Cause of Action for Failure and Refusal to Pay Agreed Upon Wages 9 Defendants assert there is no private right of action under California Labor Code 10 section 223 and as a result this cause of action should be dismissed. [Doc. No. 9-1 at 24; 11 Doc No. 10-1 at 22.] 12 It is indeed true that section 223 of the code does not create a private cause of action. 13 The provision states “[w]here any statute or contract requires an employer to maintain [a] 14 designated wage scale, it shall be unlawful to secretly pay a lower wage while purporting 15 to pay the wage designated by statute or by contract.” CAL. LAB. CODE § 223. See Calop 16 Business Systems, Inc. v. City of L.A., 984 F. Supp. 2d 981, 1015 (C. D. Cal. 2013) (section 17 223 of the California Labor Code does not create a private cause of action, “rather, anyone 18 who violates the statute is guilty of a misdemeanor and may be assessed civil penalties 19 collected by the California Labor Commissioner.”). But, Plaintiff has brought his failure 20 and refusal to pay agreed upon wages claim under other portions of the California Labor 21 Code, including sections 201, 202, 203, 204, 218, and 1194. 22 While some of the provisions under which Plaintiff has brought this claim allow for 23 a private cause of action, others do not. For example, sections 201-203 and 218 24 contemplate a private right of action either on their face or through enforcement of other 25 sections of the Labor Code. See Johnson v. Hewlett-Packard Co., 809 F. Supp. 2d 1114, 26 1135-37 (N.D. Cal. 2011) (reviewing various sections of the California Labor Code to 27 determine which causes of action can be brought as private causes of action). See also 28 Kamar v. RadioShack Corp., No CV 07-2252 AHM (AJWx), 2008 WL 2229166, at *2 n.3 20 3:17-cv-00135-CAB-(JMA) 1 (C.D. Cal. May 15, 2008) (defendant did not dispute “that a private right of action exists 2 to bring claims for unpaid wages and overtime failure to timely pay wages upon discharge, 3 pursuant to Labor Code sections 201, 202 and 203. . . .”); Guess v. U.S. Bancorp, No. C 4 06-7535 JF (RS), 2007 WL 1345194, at *3 (N.D. Cal. May 8, 2007) (“a number of 5 California appellate decisions have cited § 218 for the proposition that wage claimants have 6 a direct right of action to seek unpaid wages.”) (citations omitted). 7 Similar to section 223, section 204 of the California Labor Code does not provide 8 for a private cause of action. See Singer v. Becton, Dickinson and Co., 2008 WL 2899825, 9 at * 3 (S.D. Cal. July 25, 2008) (the only remedy for failure to comply with section 204 is 10 a civil penalty under section 210 because “section 204 does not provide for the payment of 11 any wages nor create any substantive right to wages.”). Likewise, section 221 does not, on 12 its face, provide an express private remedy to enforce its provisions and “there is nothing 13 to indicate that the legislature intended to create a private right of action to remedy 14 violations of section[] 221.” Gunawan v. Howroyd-Wright Employment Agency, 997 F. 15 Supp. 2d, 1058 (C.D. Cal. 2014).12 16 Accordingly, the Court DENIES Defendants’ motions to dismiss this cause of action 17 in its entirety, but limits Plaintiff’s claim to the private causes of action permitted by the 18 California Labor Code. 19 3. Second Cause of Action for Failure to Pay Minimum Wages Under California Law 20 21 Defendants argue for dismissal of this cause of action on the grounds that 22 compensation for meetings and trainings related to prospective employment is not required 23 under California Law. [Doc. No. 9-1 at 24-25; Doc No. 10-1 at 23-24.] Defendants posit 24 25 26 27 28 12 That is not to say that aggrieved employees cannot bring a civil action to enforce these sections of the Labor Code, it just requires such suits be brought under the Private Attorney General Act of 2004 (“PAGA”). See Calop Bus. Sys., Inc. v. City of L.A., 984 F. Supp. 2d 981, 1015 (C.D. Cal. 2013) (“PAGA provides a private right of action when a Labor Code section provides for a [civil] penalty.”) (quoting Johnson, 809 F. Supp. 2d at 1137). 21 3:17-cv-00135-CAB-(JMA) 1 that case law supports their proposition that Plaintiff is not entitled to payment of the 2 minimum wage for time spent interviewing for prospective employment, because at that 3 time, she as not an employee of the agency performing compensable work. [Id.] 4 support, Defendants rely on the central district case Gunawan and Sullivan v. Kelly 5 Services, Inc., No. C 08-3893 CW, 2009 WL 3353300, at *4-6 (N.D. Cal. Oct. 16, 2009). 6 While both cases cited by Defendants involved similar fact patterns to the case at bar they 7 involved summary judgment motions not motions to dismiss and reached opposite 8 conclusions. In 9 In Gunawan, the court was presented with uncontroverted facts that the interviews 10 plaintiff sought compensation for were conducted before plaintiff had entered into an 11 employment relationship with the staffing agency. Gunawan, 997 F. Supp. 2d at 1061. 12 Following a pre-placement interview with the staffing agency’s client and the client’s 13 affirmation of its desire for the potential employee to work for them, the staffing agency 14 then entered into an employment relationship with plaintiff. Id. The court considered the 15 level of control the staffing agency exercised over plaintiff and concluded that it was 16 insufficient, noting that had plaintiff wanted to she could have simply declined the 17 interview, refused the staffing agency’s placement service and sought to secure direct 18 employment with the client. Id. at 1064. In light of these facts, the court found that plaintiff 19 was not entitled to compensation from the staffing agency for the time she spent 20 interviewing with the agency’s client because “at the time of the interview, she did not 21 have a compensable relationship” with the agency. Id. at 1063. 22 As to Sullivan, the Court finds it to be more analogous to the case at bar, but is 23 mindful that it does not stand for as broad a proposition as Defendants suggest. Similar to 24 here, before beginning employment with one of defendant’s customers, plaintiff applied 25 for employment with defendant. Sullivan, 2009 WL 3353300, at *1-2. Subsequently, 26 defendant arranged and controlled the interviews between plaintiff and its customers, with 27 defendant discouraging direct contact between the two. Id. At the summary judgment 28 stage, the Sullivan court concluded that because of the high level of control the temporary 22 3:17-cv-00135-CAB-(JMA) 1 staffing agency had over plaintiff’s interviews with their customers, the “time spent 2 interviewing with Defendant’s customers was compensable hours worked.”13 Id. at *5. 3 However, the court’s holding was made in the context of there being a pre-existing 4 employment relationship between the plaintiff and the staffing agency at the time of the 5 interviews in question.14 6 Here, Plaintiff alleges that “Defendants hired and entered into an employment 7 relationship with the temporary services employees they employed and thereafter required 8 them to attend and participate in meetings and telephonic communications relating to the 9 prospective assignments to Defendants’ clients, consult with Defendants regarding the 10 status of assignments, provide information to Defendants regarding their availability, 11 attend interviews with Defendants’ clients, as well as undertake travel and miscellaneous 12 tasks related to each of the aforementioned activities.” [Doc. No. 12-1 at ¶ 23.] Plaintiff 13 14 In reaching this conclusion the court considered the following facts: “[p]lantiff was subject to Defendant's control during the time she attended the customer interviews. Defendant controls all communications with its customers regarding potential assignments for temporary employees, outside of the interview itself. Defendant decides which of its temporary employees to send on an interview. Defendant then sends the customer a résumé with Defendant's name on it. Defendant removes the temporary employee's contact information from the résumé and replaces it with its own to ensure that its customers can only contact it about the placement. Further, Defendant arranges the interview and restricts a temporary employee's communication with the customer so that only Defendant can arrange the time, place and date of the interview. If a temporary employee is running late to an interview, he or she must contact Defendant to relay that information to the customer. After interviews, Defendant controls all follow-up communication with the customer. Employees are not allowed to have any direct communication with the customer about the interview, salary or any terms of a possible assignment offer.” Sullivan, 2009 WL 3353300, at *4. 13 15 16 17 18 19 20 21 22 14 23 24 25 26 27 28 The court determined that based on the application for employment plaintiff signed, her employment relationship with the temping agency defendant began on the “first day of her first temporary assignment with Defendant’s customer.” Sullivan, 2009 WL 3353300, at *1. The application specifically stated that “my employment will begin on the first day of my first position.” Id. During her employment with defendant, Plaintiff attended an additional four interviews with three of defendant’s customers. Id. The court also determined that plaintiff’s travel time to and from the interviews was not compensable because defendant “did not control the manner in which Plaintiff traveled to and from the interviews.” Id. at *5. Similarly, the court found that the time plaintiff spent preparing for and debriefing defendant after the interviews was also not compensable as they were “strictly voluntary and the “[t]ime spent on these activities merely made Plaintiff a better applicant, and these activities were not controlled by Defendant in the same manner as the actual interview.” Id. at *6 23 3:17-cv-00135-CAB-(JMA) 1 also alleges the Defendants scheduled interviews, prepared candidates for those interviews, 2 imposed mandatory training and orientation on its employees, and required its temporary 3 staffers to participate in client specific training including completion of tasks pertaining to 4 background checks as prescribed by Defendants’ clients. [Id. at ¶¶ 15, 23, 25, 26, 28, 29.] 5 Further, as to the specific circumstances surrounding his own employment, Plaintiff alleges 6 that after being hired by Defendants in September 2013, he was notified of an assignment 7 with Corvance. [Id. at ¶¶ 32, 33.] Plaintiff asserts that Defendants told him “he was 8 required to present himself at Corvance’s office. Plaintiff presented at Corvance’s office 9 where he participated in a group interview, signed papers, took pictures for an identification 10 badge, meet with Corvance personnel to discuss Corvance’s polices, and filled out 11 documents related to a background check” without being compensated for any of the time 12 spent “in the interviews, meetings, conversations, and/or orientations with Defendants or 13 Corvance.” [Id. at ¶ 33.] 14 The Court concludes that these alleged facts, taken as true, show Plaintiff was an 15 employee of Defendants.15 See Betancourt v. Advantage Human Resourcing, Inc., Case 16 No. 14-cv-01788-JST, 2014 WL 4365074, at * 4(N.D. Cal. Sept. 3, 2014) (allegations 17 18 15 19 20 21 22 23 24 25 26 27 28 Defendant Huyssen moves separately to dismiss the California Labor Code Claims against in that are based on alter ego theories. [Doc, No. 9-1 at 29.] But, Plaintiff has alleged that the SAC alleges a joint employment relationship between Defendants, asserting that each Defendant “was the agent, joint employer, alter ego, and/or joint venture of, or working in concert with each of the other co-defendants and was acting within the course and scope of such agency, joint employment, joint venture, or concerted activity. To the extent said acts, conduct, and omissions, were perpetrated by certain defendants, each of the remaining defendants confirmed and ratified those acts, conduct, and omissions of the acting defendant.” [Doc. No. 1-12 at ¶ 15.] Plaintiff also alleges that Defendants “have directly or indirectly or through an agent or representative exercised control over the wages, hours and/or working conditions of Plaintiff…” [Id. at ¶ 20.] Further, Plaintiff alleged that Defendants jointly “managed, directed, and controlled the operations at their locations and dictated the common employment policies applicable to Defendants.” [Id. at ¶ 13.] Upon consideration of these allegations, the Court has determined that, for pleading purposes, Plaintiff has sufficiently alleged that Huyssen was his employer. Whether or not Plaintiff will be able to prove that Huyssen was his employer is best left for summary judgment or a jury as “[t]he precise contours of an employment relationship can only be established by a careful factual inquiry.” Nepomuceno v. Cherokee Medical Services, LLC, No, 13cv633 BTM (BGS), 2013 WL 5670960, at *4 (S.D. Cal. Oct. 16, 2013). Such an analysis is not appropriate at the pleading stage. 24 3:17-cv-00135-CAB-(JMA) 1 including defendant’s role identifying the potential hiring entity, organizing the logistics 2 of the interview with the customer, controlling the flow of information between the 3 customer and temporary staffer, and prohibiting direct communication between the 4 temporary worker and the client, were sufficiently alleged to demonstrate defendant’s 5 control over wages, hours and conditions to withstand a motion to dismiss.). Further, the 6 Court finds that Plaintiff has sufficiently alleged that the interviews with Defendants’ 7 clients was not a typical pre-employment interview. 8 At the time of his interview with Corvance, Plaintiff “alleges that he was already 9 [Defendants’] employee, performing a task – interviewing with [Defendants’] client – that 10 his employer required.” Id. at 7. Consequently, the Court DENIES Defendants’ motions 11 to dismiss the second cause of action. 12 4. Third Cause of Action for Failure to Provide Accurate Itemized Wage Statements 13 14 Defendants assert that Plaintiff’s third claim fails because it is time barred, is 15 predicated on Plaintiff’s minimum wage claims, and because California Labor Code § 16 226(a) only requires that employers accurately describe the monies being paid at the time 17 of each payment of wages. [Doc. No. 9-1 at 25-27; Doc. No. 10-9 at 24-25.] Plaintiff does 18 not contest dismissal of the third cause of action. [Doc. No. 16 at 18.] Accordingly, 19 Defendants’ motions to dismiss the third cause of action are GRANTED. 20 5. Fourth Cause of Action for Failure to Pay Wages Upon Termination 21 Defendants argue that Plaintiff’s fourth claim fails because it is predicated on 22 Plaintiff’s minimum wage claims which also fails, and because a good faith dispute exists 23 as to whether Huyssen and L.A. Leasing owed Plaintiff any wages. [Doc. No. 9-1 at 27- 24 28; Doc No. 10-1 at 25-26.] As previously discussed, the Court has found that Plaintiff 25 has sufficiently alleged a minimum wage claim, Defendants’ argument for dismissal on 26 this basis fails. 27 Defendants are correct that an employer is not liable for waiting penalties when a 28 “good faith dispute” exists over the payment of wages. California Labor Code section 203 25 3:17-cv-00135-CAB-(JMA) 1 holds an employer liable for penalties if it “willfully fails to pay” wages owed to an 2 employee at the time he or she is discharged or quits. CAL LAB CODE § 203(a). “A willful 3 failure to pay wages . . . occurs when an employer intentionally fails to pay wages to an 4 employee when those wages are due, However, a good faith dispute that any wages are 5 due will preclude imposition of waiting time penalties under Section 203.” Cal. Code. 6 Regs. Tit. 8, § 13520 (2011). In this context, willfulness “does not necessarily imply 7 anything blamable, or any malice or wrong . . . but merely that the thing done or omitted 8 to be done was done or omitted intentionally.” Baker v. American Horticulture Suppl, Inc., 9 186 Cal. App. 4th 1059 (2010). A “good faith dispute . . . occurs when an employer 10 presents a defense, based in law or fact which, if successful, would preclude any recovery 11 on the part of the employee.” Id. 12 Plaintiff alleges that upon terminating his relationship with Defendants in July 2014, 13 “none of the unpaid wages or expense reimbursements referenced in the proceeding 14 paragraphs were included in his final paycheck and they remain unpaid today.” [Doc. No. 15 12-1 at ¶ 34; see also ¶ 93.] Plaintiff also alleges that Defendants “knowingly, willfully, 16 and intentionally” failed to compensate Plaintiff. [Doc. No. 1-12 at ¶¶ 105, 106.] These 17 allegations sufficiently plead, for purposes of the motions to dismiss, a failure to pay all 18 wages upon separation claim. 19 Having found the claim adequately pled, the Court agrees with Plaintiff that 20 Defendants are prematurely claiming they have presented a good faith defense. At this 21 stage of the litigation, neither party has been given the opportunity to present evidence, nor 22 aside from filing the motions to dismiss, have Defendants asserted any affirmative 23 defenses. Accordingly, the Court DENIES Defendants’ motions to dismiss the fourth 24 cause of action. 25 26 6. Fifth Cause of Action for Violation of California’s Unfair Competition Law 27 Defendants assert that the Cause of Action fails because it is predicated on the other 28 violations of law alleged in the SAC which also fail. [Doc. No. 9-1 at 28, Doc. No. 10-1] 26 3:17-cv-00135-CAB-(JMA) 1 at 26-27.] A cause of action under the UCL must be predicated upon violations of other 2 laws. Smith v. State Farm Mutual Automobile Ins. Co., 93 Cal. App. 4th 700, 717-718. As 3 discussed above, Plaintiff has adequately alleged violations of the California Labor Code 4 and FLSA upon which to predicate his UCL claim. As a consequence, Defendants’ 5 motions to dismiss the fifth cause of action are DENIED. 6 IV. 7 For the reasons discussed above Defendant TemPro’s motion to dismiss [Doc. No. 8 11] the SAC pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure is DENIED. 9 Further, Defendants Huyssen and L.A. Leasing’s motions to dismiss the SAC pursuant to 10 Rule 12(b)(6) are GRANTED IN PART AND DENIED IN PART. Defendants shall 11 respond to the SAC within the limits established by the Federal Rules of Civil Procedure. 12 The parties are directed to contact the chambers of Magistrate Judge Adler to request a 13 Case Management Conference/Early Neutral Evaluation Conference be scheduled as soon 14 as possible. 15 16 Conclusion It is SO ORDERED. Dated: July 7, 2017 17 18 19 20 21 22 23 24 25 26 27 28 27 3:17-cv-00135-CAB-(JMA)

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