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Guerrero v. T-Y Nursery, Inc.

United States District Court, S.D. California

October 29, 2014



JEFFREY T. MILLER, District Judge.

Defendant T-Y Nursery ("T-Y") moves to dismiss the First Amended Complaint ("FAC") pursuant to Fed.R.Civ.P. 12(b)(6) and for a more definite statement pursuant to Fed.R.Civ.P. 12(e). Defendant Statewide Labor Corporation ("Statewide") also moves to dismiss the FAC pursuant to Fed.R.Civ.P. 12(b)(6). Plaintiffs Victor Guerrero, Eugenio Aguilar Paz, Fidel Rayo Hernandez and Bahuman Gonzalez (collectively "Plaintiffs") oppose all motions. Pursuant to Local Rule 7.1(d)(1), the court finds the matters presented appropriate for decision without oral argument. For the reasons set forth below, all motions are denied.


The operative FAC, filed on April 18, 2014, alleges twelve causes of action for (1) violation of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §201 et seq.; violation of the Migrant and Seasonal Agricultural Worker Protection Act ("AWPA"), 29 U.S.C. §1801 et seq.; (3) failure to pay contractual wages; (4) failure to pay minimum wage, Cal. Labor Code §§1182.12, 1194, 1194.2, and 1197; (5) failure to provide meal periods, Cal. Labor Code §§226.7, 1198; (6) failure to pay promised vacation benefits upon termination, Cal. Labor Code § 227.3; (7) knowing and intentional failure to provide accurate and complete itemized statements, Cal. Labor Code §226; (8) failure to pay all wages due upon termination, Cal. Labor Code §201, 203; (9) failure to indemnify employees for necessary expenditures, Cal. Labor Code §1198, 2802; (10) failure to provide copies of employment records, Cal. Labor Code 226; (11) unlawful competition, Cal. Bus. and Prof. Code §17200 et seq.; and (12) private attorney's general act, Cal. Labor Code §2698. With respect to the FLSA claim, Plaintiffs seek to bring this claim on behalf of "themselves and for and on behalf of other employees similarly situated." (FAC ¶ 55).

Plaintiffs are agricultural workers with an employment relationship with Defendants. Defendant T-Y operates agricultural nurseries in San Diego County and employed Plaintiffs. (FAC ¶ 17). T-Y is in the business of cultivating plants, shrubs and trees which are sold in interstate commerce. (FAC ¶ 31). Defendant Statewide is in the business of agricultural production and labor contracting and supplies labor to agricultural nurseries like T-Y. (FAC ¶¶ 16-18).

In broad brush, Plaintiffs allege that Defendants failed to pay full wages by, among other things, requiring Plaintiffs to report to work and wait, off-the-clock, until frost was no longer on the fields before Plaintiffs could begin to work. Defendants also allegedly failed to provide legally-required accurate wage statements, pay minimum wages, pay accrued vacation benefits, timely provide wage statements, furnish safety devices, provide meal breaks, provide and maintain tools and equipment necessary to perform their job, and timely pay wages upon termination. (FAC ¶¶ 41-48). Plaintiffs also allege that Defendants exposed workers to unsafe and unhealthy work conditions by, for example, failing to provide shade and cool-down recovery periods. (FAC ¶ 49). Plaintiffs seek compensatory, statutory, and liquidated damages. Plaintiffs also seek declaratory relief and an award of costs, including attorney's fees.

Defendants seek to dismiss the first and second causes of action for violation of FLSA and AWPA, respectively. T-Y also moves for a more definite statement.


Legal Standards

Federal Rule of Civil Procedure 12(b)(6) dismissal is proper only in "extraordinary" cases. United States v. Redwood City , 640 F.2d 963, 966 (9th Cir. 1981). Courts should grant 12(b)(6) relief 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. 1990). Courts should dismiss a complaint for failure to state a claim when the factual allegations are insufficient "to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555 (2007) (the complaint's allegations must "plausibly suggest[]" that the pleader is entitled to relief); Ashcroft v. Iqbal , 556 U.S. 662 (2009) (under Rule 8(a), well-pleaded facts must do more than permit the court to infer the mere possibility of misconduct). "The plausibility standard is not akin to a probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. at 678. Thus, "threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id . The defect must appear on the face of the complaint itself. Thus, courts may not consider extraneous material in testing its legal adequacy. Levine v. Diamanthuset, Inc. , 950 F.2d 1478, 1482 (9th Cir. 1991). The courts may, however, consider material properly submitted as part of the complaint. Hal Roach Studios, Inc. v. Richard Feiner and Co. , 896 F.2d 1542, 1555 n.19 (9th Cir. 1989).

Finally, courts must construe the complaint in the light most favorable to the plaintiff. Concha v. London , 62 F.3d 1493, 1500 (9th Cir. 1995), cert. dismissed, 116 S.Ct. 1710 (1996). Accordingly, courts must accept as true all material allegations in the complaint, as well as reasonable inferences to be drawn from them. Holden v. Hagopian , 978 F.2d 1115, 1118 (9th Cir. 1992). However, conclusory allegations of law and unwarranted inferences are insufficient to defeat a Rule 12(b)(6) motion. In Re Syntex Corp. Sec. Litig. , 95 F.3d 922, 926 (9th Cir. 1996).

The FLSA Claim

Defendants seek to dismiss the FLSA claim on the ground that Plaintiffs and putative class members have failed to file written consents to join the action as required by 29 U.S.C. §216(b). The FLSA provides that "[n]o employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought." Id . At the outset, the court notes that FLSA collective actions and Rule 23 class actions have separate procedures. In FLSA collective actions, a plaintiff must affirmatively opt-in a FLSA action. Id .; Busk v. Integrity Staffing Solutions, Inc. , 713 F.3d 525, 528 (9th Cir. 2013).

Defendants raise two distinct issues. First, with respect to maintaining a collective action, the consents to sue by current or former co-employees of Plaintiffs need not be filed with the complaint. Plaintiffs must timely seek leave from this court to proceed as a collective action. At that time, Plaintiffs must file the consents from putative class members. However, until the parties conduct discovery on the viability of maintaining a collective action, any motion to maintain a collective action is premature and the court therefore denies this portion of Defendants' motion to dismiss. The second issue concerns whether the named Plaintiffs must file consents on their own behalf. As noted by the parties, it does not appear that the Ninth Circuit has addressed whether individual plaintiffs in a FLSA must file consents. The court notes that consent can reasonably be found in this case: Plaintiffs have retained counsel and commenced this action. Under virtually every conceivable circumstance, such conduct ...

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