United States District Court, N.D. California, San Jose Division
March 19, 2014
FRANCISCO SANCHEZ, Plaintiff,
MOHAMMAD USMAN dba NAIMAT KADAH INTERNATIONAL, INC.; NAIMAT KADAHA INTERNATIONAL, INC.; KABOB & CURRY'S, Defendants.
ORDER GRANTING PLAINTIFF'S MOTION TO DISMISS [Re: Dkt. No. 11]
HOWARD R. LLOYD, Magistrate Judge.
Restaurant worker Francisco Sanchez sues defendants Mohammad Usman (dba Naimat Kadah International, Inc.), Naimat Kadah International, Inc., and Kabab & Curry's for alleged failure to pay overtime wages in violation of federal and state law. Defendants' Answer purported to include a "counterclaim" not on their own behalf, but on behalf of several newcomers. Pursuant to Fed.R.Civ.P. 12(b)(1), Sanchez moves to dismiss the counterclaim, a state law conversion claim filed on behalf of four of Kabab & Curry's service employees: Ali Omar, Syed Hassan, Kashif Mohammad, and Jahanzaib Aslam (collectively, "servers"). Defendants and servers oppose the motion. All parties have expressly consented that all proceedings in this matter may be heard and finally adjudicated by the undersigned. 28 U.S.C. § 636(c); Fed.R.Civ.P. 73. The matter is deemed suitable for determination without oral argument, and the March 25, 2014 hearing is vacated. Civ. L.R. 7-1(B). Upon consideration of the moving and responding papers, the court grants the motion.
Sanchez worked for a time at the Kabab & Curry's restaurant in Santa Clara County. He claims that, although he was a non-exempt employee, defendants paid him a fixed salary every two weeks and did not compensate him for overtime at one and a half times his regular rate of pay. (Id.). Defendants dispute much of plaintiff's characterization of his duties and contend that Kabab & Curry's fully compensated him for all of his work at the restaurant.
At issue in the instant motion is the "counterclaim" for conversion asserted against Sanchez by several of Kabab & Curry's servers. They say that, pursuant to the restaurant's practice, tips are collected by employees who place them in a box where they are later divided among the restaurant's service staff at the end of the shift. (Dkt. 8, p. 16 ¶ 11). The servers allege that, in violation of restaurant practice, Sanchez regularly pocketed tips for himself and refused to share them with the rest of the service staff. (Id. ¶ 12).
The gist of plaintiff's motion to dismiss is that the servers' conversion claim was not properly brought as a counterclaim and that the servers are not properly joined in this action. And, because the conversion claim is based solely on state law, Sanchez contends that this court lacks jurisdiction to adjudicate it.
None of the servers was named as a defendant in plaintiff's complaint. For that reason, the conversion claim cannot properly be designated as a "counterclaim" under Fed.R.Civ.P. 13.
The servers do not contend that they are necessary parties to this action. Instead, they argue that they may permissively be joined in this action under Fed.R.Civ.P. 20, which allows persons to join as co-plaintiffs or co-defendants when (1) a right to relief is asserted by or against them jointly, severally, or in the alternative, arising out the same transaction or occurrence, or series of transactions or occurrences; and (2) any question of law or fact common to all parties will arise in the action. Fed.R.Civ.P. 20(a)(1)(A). The servers correctly note that Rule 20 "is to be construed liberally in order to promote trial convenience and to expedite the final determination of disputes, thereby preventing multiple lawsuits." Desert Empire Bank v. Ins. Co. of N. Am. , 623 F.2d 1371, 1376 (9th Cir. 1980) (quoting League to Save Lake Tahoe v. Tahoe Regional Planning Agency , 558 F.2d 914 (9th Cir. 1977)).
But, on the record presented, this court is satisfied that Rule 20 is not the proper vehicle for analysis either. On its face, that rule pertains to the joinder of persons as co-plaintiffs or co-defendants. The servers are neither one nor the other. Instead, it seems that what they would have this court do is "consolidate" the instant action with their separate claim for conversion, which could otherwise only be brought in state court. Based on the arguments presented here, this court is unpersuaded that it properly may graft onto this action a conversion claim over which it would have no subject matter jurisdiction, and which never was separately filed in any court. In short, the so-called "counterclaimants" are mere interlopers.
For the foregoing reasons, plaintiff's motion to dismiss is granted and the servers' conversion claim is dismissed. The dismissal is, however, without prejudice to the servers to bring their claim in state court.