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Richard Nelson, On Behalf of Himself v. Dollar Tree Stores

August 15, 2011

RICHARD NELSON, ON BEHALF OF HIMSELF AND OTHERS SIMILARLY SITUATED, PLAINTIFF,
v.
DOLLAR TREE STORES, INC. AND DOES 1 TO 50, INCLUSIVE, DEFENDANTS.



ORDER GRANTING DEFENDANT‟S MOTION TO DISMISS AND TO STRIKE

This matter comes before the Court on Defendant Dollar Tree Stores, Inc.‟s ("Defendant") Motion To Dismiss and To Strike (Doc. #7) the Complaint ("Complaint") (Doc. #1) filed by Plaintiff Richard Nelson("Plaintiff"). Plaintiff opposes the motion (Doc. #12). Defendant submits a Request for Judicial Notice in Support of Defendant‟s Motion to Dismiss and to Strike (Doc. #8). *fn1 Plaintiff does not oppose Defendant‟s request.

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff is a former Assistant Manager employed by Defendant.

Plaintiff brings this putative wage and hour class action lawsuit 2 alleging that he, and all individuals who hold or held position of 3 "Store Manager" and/or "Assistant Store Manager," or similar title, 4 who are employed by, or were formerly employed by Defendant, were 5 not reimbursed for out of pocket expenses for the use of their 6 personal vehicles as a requirement of employment. Plaintiff 7 alleges that Defendant willfully failed to properly reimburse 8 expenses relating to the use of personal vehicles to Plaintiff, and 9 to the class, at the time they quit or were discharged.

Plaintiff alleges three causes of action: 1) violation of Cal. Lab. Code § 2802 for the alleged failure to reimburse expenses; (2) violation of Cal. Lab. Code § 203 for waiting time penalties in connection with the alleged failure to reimburse expenses; and (3) violation of Bus. & Prof. Code § 17200 et.seq ("UCL"). Defendant removed the action to this Court based upon the Class Action Fairness Act, 28 U.S.C. § 1332(d)(2), and now moves to dismiss the Complaint.

II. OPINION

A. Legal Standard

1. Motion to Dismiss

A party may move to dismiss an action for failure to state a claim upon which relief can be granted pursuant to Federal Rules of Civil Procedure 12(b)(6). In considering a motion to dismiss, the court must accept the allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by Davis v. Scherer, 468 U.S. 183 (1984); Cruz v. Beto, 405 U.S. 319, 322 (1972). Assertions that are mere "legal conclusions," however, 2 are not entitled to the assumption of truth. Ashcroft v. Iqbal, 3 129 S. Ct. 1937, 1950 (2009) (citing Bell Atlantic Corp. v. 4 Twombly, 550 U.S. 544, 555 (2007)). To survive a motion to 5 dismiss, a plaintiff needs to plead "enough facts to state a claim 6 to relief that is plausible on its face." Twombly, 550 U.S. at 7 570. Dismissal is appropriate where the plaintiff fails to state a 8 claim supportable by a cognizable legal theory. Balistreri v. 9 Pacifica Police Department, 901 F.2d 696, 699 (9th Cir. 1990).

Upon granting a motion to dismiss for failure to state a claim, the court has discretion to allow leave to amend the complaint pursuant to Federal Rules of Civil Procedure 15(a). "Dismissal with prejudice and without leave to amend is not appropriate unless it is clear . . . that the complaint could not be saved by amendment." Eminence Capital, L.L.C. v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003).

2. Motion to Strike

"Rule 12(f) provides in pertinent part that the Court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter . . . motions to strike are disfavored and infrequently granted. A motion to strike should not be granted unless it is clear that the matter to be stricken could have no possible bearing on the subject matter of the litigation." Bassett v. Ruggles, et al., 2009 WL 2982895 at *24(E.D. Cal. Sept. 14, 2009) (internal citations omitted).

B. Judicial Notice

As an initial matter, Defendant requests judicial notice of the California Department of Industrial Relations, Division of 2 Labor Standards Enforcement ("DLSE") Enforcement Policies & 3 Interpretations Manual, ยง 4.3.4 (June 2002) and the DLSE 4 "Frequently Asked Questions," available at 5 http://www.dir.ca.gov/dlse/FAQ_WaitingTimePenalty.htm (last 6 visited May ...


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