The opinion of the court was delivered by: Honorable Barry Ted Moskowitz United States District Judge
ORDER DENYING MOTION TO DISMISS OR STRIKE
On September 9, 2008 Defendant Lee Publications filed a Motion to Dismiss or Strike Plaintiffs' First Amended Complaint [Docket No. 11].Plaintiffs filed their response on November 2, 2008. On November 6, 2008, Defendant filed its reply. For the reasons discussed below, Defendant's Motion to Dismiss or Strike is DENIED.
The following facts are taken from the Complaint. The Court makes no finding as to the truthfulness of the allegations of the Complaint.
Defendant Lee Publications, Inc. operates the North County Times, a newspaper of general circulation in the San Diego area. (First Am. Compl. ("FAC") ¶¶ 9, 12.) Plaintiffs are current and former home delivery newspaper carriers for Defendant. (FAC ¶ 7.) Plaintiffs perform several functions at distribution centers owned and operated by Defendant. (FAC ¶ 13.) For example, Plaintiffs fold and/or insert pre-prints, supplements, inserts, samples, and other products into plastic bags, which bags the Defendant requires Plaintiffs to purchase for delivery of the papers. (Id.) Defendant uses computer systems to instruct Plaintiffs on delivering newspapers. (FAC ¶ 14.) Defendant requires no special education, certification, or licensing (beyond a license to operate a car) to perform work as a home delivery carrier. (FAC ¶ 15.) Defendant classifies Plaintiffs as independent contractors, not employees. (FAC ¶ 17.)
On April 18, 2008, Plaintiffs filed a complaint in the Superior Court of California. Defendant removed the case to the district court on June 17, 2008 pursuant to 28 U.S.C. 1441(a) [Docket No. 1]. On August 21, 2008, Plaintiffs filed their First Amended Complaint ("FAC"). Plaintiffs alleged nine causes of action, including (1) failure to pay minimum wage, hourly wages, and overtime wages, (2) failure to provide proper meal periods or compensation in lieu thereof, (3) failure to provide rest breaks or compensation in lieu thereof, (4) failure to reimburse for reasonable business expenses, (5) unlawful withholding of wages due, (6) failure to provide itemized wage statements, (7) failure to keep accurate payroll records showing hours worked daily by Plaintiffs, (8) waiting time penalties, and (9) unfair business practices. On September 2, 2008, Defendant filed the instant Motion to Dismiss or Strike.
In support of their Motion to Dismiss or Strike Plaintiff's FAC, Defendant makes three arguments. First, Defendant claims that Plaintiff's class definition should be stricken to the extent that it conflicts with applicable statutes of limitations. Second, Defendant argues that Plaintiff's overtime, meal, and rest claims should be dismissed or that the FAC should be stricken as to those claims. Third, Defendant alleges that Plaintiffs' automobile expense reimbursement claims should be dismissed for failure to state a claim upon which relief may be granted.
A. Statute of Limitations
Defendant first argues that the Court should strike Plaintiffs' class definition to the extent that it includes some members whose claims will be barred by the applicable statutes of limitations. Plaintiff's putative class consists of all persons presently and formerly engaged as independent contractor North County Times newspaper carriers since April 14, 2004. (FAC ¶ 1.) A one year statute of limitations period applies to Plaintiffs' claims for penalties under California Labor Codes Sections 226, 1174, and 1197.1. (See Cal. Civ. Proc. Code § 340(a).) A three year statute of limitations period applies to Plaintiff's claim under Section 203. (See Cal. Civ. Proc. Code § 338(a).)
Defendant correctly points out that any claims by class members whose contracts ended prior to the applicable statute of limitations period may be barred. However, the issue of the applicability of the statute of limitations is more appropriately addressed in a motion for partial summary judgment or class certification. Whether or not there are issues of tolling cannot be ascertained on the record before the court. The motion to dismiss or strike based on the statute of limitations is DENIED without prejudice.
B. Overtime, Meal, and Rest Claims
Defendant next argues that the Court should dismiss or strike Plaintiffs' class overtime (First Cause of Action), meal (Second Cause of Action), and rest period (Third Cause of Action) claims.
A motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) should be granted only where a plaintiff's complaint lacks a "cognizable legal theory" or sufficient facts to support a cognizable legal theory. Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1988). The plaintiff must set forth only a "short and plain statement" of the claim showing that plaintiff is entitled to relief. Conley v. Gibson, 355 U.S. 41, 47 (1957). When reviewing a motion to dismiss for failure to state a claim, the Court accepts all well-pleaded facts of the ...