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Willner v. Manpower Inc.

United States District Court, N.D. California

March 31, 2014

VERA WILLNER, Plaintiff,
v.
MANPOWER INC., Defendant

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For Vera Willner, individually, and on behalf of all others similarly situated, Plaintiff: James Kan, Laura L. Ho, Goldstein Borgen Dardarian & HO, Oakland, CA; Jeffrey C. Jackson, Kirk David Hanson, Jackson Hanson, LLP, San Diego, CA; Lin Yee Chan, Goldstein Demchak Baller Borgen & Dardarian, Oakland, CA.

For Manpower Inc., Defendant: Matthew C. Kane, LEAD ATTORNEY, Sylvia Jihae Kim, McGuire Woods LLP, Los Angeles, CA; Brian Edward Spang, PRO HAC VICE, McGuireWoods LLP, Chicago, IL.

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ORDER GRANTING IN PART AND DENYING IN PART MANPOWER'S MOTION FOR JUDGMENT ON THE PLEADINGS OR SUMMARY JUDGMENT; GRANTING MOTION FOR LEAVE TO AMEND THE COMPLAINT; GRANTING WILLNER'S MOTION FOR SUMMARY JUDGMENT

JON S. TIGAR, United States District Judge.

Three motions are pending in this putative class action for violations of California labor laws. First, Defendant Manpower moves for judgment on the pleadings or for summary judgment with respect to four of the five claims that Plaintiff Willner has asserted in the operative complaint. Second, Willner moves for leave to file a fifth amended complaint. Third, Willner moves for summary judgment on her claim for PAGA penalties in connection with Manpower's purported violations of California Labor Code section 226. Each of these motions is opposed. For the reasons set forth below, Manpower's motion for judgment on the pleadings or summary judgment is GRANTED IN PART and DENIED IN PART, and both of Willner's motions are GRANTED.

I. BACKGROUND

A. The Parties and Claims

Plaintiff Vera Willner is an hourly employee of Manpower, which operates a " temporary employment agency." Fifth Am. Compl. (" FAC" ) ¶ 2.[1] She received her wages from Manpower by U.S. mail and was paid on a weekly basis when work was assigned to her. Id

Willner brings this putative class action against Manpower " for California Labor Code violations stemming from [Manpower's] failure to furnish accurate wage statements and failure to timely pay all wages to employees who received their wages by U.S. mail." Id. ¶ 1

Willner asserts the following five claims in the operative complaint: (1) violations of California Labor Code section 201.3(b)(1) for failure to pay timely weekly wages; (2) violations of California Labor Code section 226 for failure to furnish accurate wage statements; (3) violations of California's Unfair Competition Law (" UCL" ) for failure to provide accurate wage statements and to pay timely wages; (4) penalties under the Private Attorney General Act (" PAGA" ) for failure to provide accurate wage statements and to pay timely wages; and (5) violations of California Labor Code sections 201 and 203 for failure to pay timely wages due at separation.

Willner seeks to represent two classes of temporary employees. First, in connection with her claims under section 201.3(b)(1), the UCL (to the extent that

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the claim is premised on violations of section 201.3(b)(1)), and PAGA (to the extent that the claim is premised on violations of section 201.3(b)(1)), she seeks to represent:

All persons who were or are employed by Manpower Inc. in California as temporary employees at any time from four years before the filing of the Complaint up to the present who received their wages by U.S. mail, except individuals who were or are at the same time jointly employed by a franchisee of Manpower, including, but not limited to, franchisee CLMP LTD., dba Manpower of Temecula.

Second, in connection with her claims under section 226, the UCL (to the extent that the claim is premised on violations of section 226), and PAGA (to the extent that the claim is premised on violations of section 226), she seeks to represent:

All persons who were or are employed by Manpower Inc. in California as temporary employees at any time from one year before the filing of the Complaint up to the present who received their wage statements from Manpower Inc. by U.S. mail or by electronic transmission, except individuals who were or are at the same time jointly employed by a franchise of Manpower, including, but not limited to franchise CLMP LTD., dba Manpower of Temecula.

B. Jurisdiction

The Court has jurisdiction over this action under 28 U.S.C. § 1332(d).

II. MOTION FOR LEAVE TO AMEND THE COMPLAINT

A. Legal Standard

Federal Rule of Civil Procedure 15(a) permits a party to amend a pleading once " as a matter of course" within 21 days of serving it or within 21 days after a response to it has been filed. Fed.R.Civ.P. 15(a)(1). Otherwise, " a party may amend its pleading only with the opposing party's written consent or the court's leave." Fed.R.Civ.P. 15(a)(2). A district court " should freely give leave" to amend a pleading " when justice so requires." Id. " Four factors are commonly used to determine the propriety of a motion for leave to amend. These are: bad faith, undue delay, prejudice to the opposing party, and futility of amendment." DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987) (citation omitted). " Not all of the factors merit equal weight . . . it is the consideration of prejudice to the opposing party that carries the greatest weight." Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). " The party opposing amendment bears the burden of showing prejudice." DCD Programs, 833 F.2d at 187. Generally, a court must make the determination of whether to grant leave " with all inferences in favor of granting the motion." Griggs v. Pace Am. Grp., Inc., 170 F.3d 877, 880 (9th Cir. 1999).

B. Analysis

After the Court took under submission Manpower's motion for judgment on the pleadings or summary judgment, Willner filed a motion for leave to file a fifth amended complaint to expand her class allegations with respect to Manpower's purported violations of section 226 to cover all temporary employees in California regardless of how they received their wage statements. ECF No. 100 at 1. Previously, this putative class claim had been limited to temporary employees who had received their wage statements via mail. See Fourth Am. Compl. ¶ 14, ECF No. 80.

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Willner argues that the proposed amendment will not affect the determination of the pending motion for judgment on the pleadings or summary judgment because it " does not add (or take away) causes of action nor add any new theories of liability." Mot. at 3, ECF No. 100. Willner contends that the proposed amendment was precipitated by the testimony of Bonnie Matson, Manpower's Rule 30(b)(6) witness, which established that all of Manpower's temporary employees receive wage statements that are in the same format as the ones that Willner received by mail. Id. at 3-4.

Manpower opposes the motion, arguing that Willner seeks the proposed amendment in bad faith, that the proposed amendment is futile, and that Willner unduly delayed in seeking the proposed amendment. Manpower contends that one of the previous iterations of the complaint asserted a section 226 claim for inaccurate wage statements on behalf of all of Manpower's employees in California, but Willner later narrowed the scope of that claim to cover only employees who received their wage statements via mail in order to avoid transfer of this action to another district where other identical putative class claims were pending. ECF No. 103 at 2-3; see also ECF No. 28. Manpower contends that Willner's self-limitation of her section 226 claims constitutes a waiver of any allegations pertaining to section 226 violations that cover all of Manpower's temporary employees. Manpower further argues that Willner unduly delayed in seeking the proposed amendment because she has known of its factual and legal basis since the outset of the litigation. Finally, in the event that the Court grants Willner's request for leave to amend, Manpower requests that the Court enter an order awarding Manpower the costs and attorney's fees it incurred in opposing this motion and precluding Willner from conducting additional discovery in connection with the newly-expanded section 226 allegations.

Willner responds that she has not waived any claims or allegations, because no prior iteration of the complaint has asserted section 226 claims on behalf of a class that includes all of Manpower's employees in California. ECF No. 105. Instead, each of the prior iterations of the complaint has limited the scope of the section 226 allegations to employees who received their wage statements by mail. Willner further contends that she did not delay in seeking the proposed amendment, because the basis for the amendment is evidence that she obtained recently through the deposition of Bonnie Matson.

The Court concludes that granting leave to amend is appropriate. Manpower does not contend that it would be prejudiced by the proposed amendment, which is the factor that carries the greatest weight in the Rule 15(a) analysis. Instead, Manpower's opposition invites the Court to deny leave on the grounds of bad faith, futility, and undue delay, but its arguments are unpersuasive and insufficient to justify denying the requested leave. A review of the previously filed complaints reveals that Willner's section 226 claims have always been limited to employees who received their wages via mail. See First Am. Compl. ¶ ¶ 16, 38, ECF No. 1, Ex. B; Second Am. Compl. ¶ 2, ECF No. 3; Third Am. Compl. ¶ 5, ECF No. 44. Accordingly, because it is not the case that Willner previously asserted section 226 claims on behalf of a class that includes all of Manpower's employees in California, Manpower's arguments of bad faith and waiver are unsound. Moreover, Willner has provided a justification for the timing of the proposed amendment, namely that she discovered the evidence necessary to

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support it during the recent deposition of Manpower's Rule 30(b)(6) witness. As such, Manpower's arguments of undue delay also are unavailing. Willner's motion for leave to file the proposed amended complaint is GRANTED.

Manpower's request for sanctions or for an order limiting discovery as a condition to granting leave to amend is DENIED. The cases that Manpower cites in support of its request establish that the imposition of sanctions under Rule 15 is appropriate when doing so would prevent prejudice to the party opposing amendment. See Gen. Signal Corp. v. MCI Telecommunications Corp., 66 F.3d 1500, 1514 (9th Cir. 1995) (holding that " a district court, in its discretion, may impose costs pursuant to Rule 15 as a condition of granting leave to amend in order to compensate the opposing party for additional costs incurred because the original pleading was faulty" and thus prejudicial to the party opposing amendment); see also Firchau v. Diamond Nat. Corp., 345 F.2d 269, 275 (9th Cir. 1965) (holding that, in deciding a motion for leave to amend a pleading, the district court may " prescribe as a condition reasonable terms compensating [the party opposing amendment] for any loss or expense occasioned by [the] failure to file adequate pleadings in the first instance" ). Here, Manpower has made no showing of prejudice; thus, the Court finds that there are no grounds for the imposition of monetary sanctions or the imposition of limits on discovery.

Willner shall file the proposed Fifth Amended Complaint she attached to her motion within five court days of the date this order is filed. The Court will treat the Fifth Amended Complaint as the operative complaint for the purpose of determining the other pending motions in this action.

III. MOTION FOR JUDGMENT ON THE PLEADINGS OR SUMMARY JUDGMENT

A. Legal Standards

1. Judgment on the Pleadings

A party may move for judgment on the pleadings " after the pleadings are closed . . . but early enough not to delay trial." Fed.R.Civ.P. 12(c). " A judgment on the pleadings is properly granted when, taking all the allegations in the non-moving party's pleadings as true, the moving party is entitled to judgment as a matter of law." Fajardo v. Cnty. of Los Angeles, 179 F.3d 698, 699 (9th Cir. 1999). " Judgment may only be granted when the pleadings show that it is beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Enron Oil Trading & Transp. Co. v. Walbrook Ins. Co., Ltd., 132 F.3d 526, 529 (9th Cir. 1997) (citations and internal quotation marks omitted).

2. Summary Judgment

Summary judgment is proper when a " movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). " A party asserting that a fact cannot be or is genuinely disputed must support the assertion by" citing to depositions, documents, affidavits, or other materials. Fed.R.Civ.P. 56(c)(1)(A). A party also may show that such materials " do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed.R.Civ.P. 56(c)(1)(B). An issue is " genuine" only if there is sufficient evidence for a reasonable fact-finder to find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is

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" material" if the fact may affect the outcome of the case. Id. at 248. " In considering a motion for summary judgment, the court may not weigh the evidence or make credibility determinations, and is required to draw all inferences in a light most favorable to the non-moving party." Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir. 1997).

Where the party moving for summary judgment would bear the burden of proof at trial, that party bears the initial burden of producing evidence that would entitle it to a directed verdict if uncontroverted at trial. See C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000). Where the party moving for summary judgment would not bear the burden of proof at trial, that party bears the initial burden of either producing evidence that negates an essential element of the non-moving party's claim, or showing that the non-moving party does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial. If the moving party satisfies its initial burden of production, then the non-moving party must produce admissible evidence to show that a genuine issue of material fact exists. See Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102-03 (9th Cir. 2000). The non-moving party must " identify with reasonable particularity the evidence that precludes summary judgment." Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996). Indeed, it is not the duty of the district court to " to scour the record in search of a genuine issue of triable fact." Id. " A mere scintilla of evidence will not be sufficient to defeat a properly supported motion for summary judgment; rather, the nonmoving party must introduce some significant probative evidence tending to support the complaint." Summers v. Teichert & Son, Inc., 127 F.3d 1150, 1152 (9th Cir. 1997) (citation and internal quotation marks omitted). If the non-moving party fails to make this showing, the moving party is entitled to summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

B. Analysis

Willner moves for judgment on the pleadings or for summary judgment with respect to four of the five claims that Willner asserts in the operative complaint.[2] ECF No. 76. Willner, on the other hand, moves for summary judgment on her claim for PAGA penalties in connection with Manpower's purported violations of section 226. ECF No. 101. The only claim not at issue in the motions is Willner's claim for violations of California Labor Code sections 201 and 203 for failure to pay timely wages due at separation.

1. Late Payment of Wages under Section 201.3(b)(1)

Willner alleges that Manpower failed to pay timely weekly wages to its temporary employees who receive their paychecks via U.S. mail in violation of section 201.3(b)(1) of the Labor Code. FAC ¶ ¶ 24-28. Manpower allegedly mails paychecks to employees who choose to receive their paychecks via mail " on the payday following the week in which they worked," which results in employees receiving their paychecks " at least two or three ...


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