United States District Court, C.D. California
Victor Acevedo, et al.
City of Los Angeles, et al
Attorneys for Plaintiffs: Not Present.
Attorneys for Defendants: Not Present.
CIVIL MINUTES - GENERAL
Honorable GEORGE H. KING, CHIEF UNITED STATES DISTRICT JUDGE.
Proceedings: (In Chambers)
Defendant City of Los Angeles' Motion to Strike, or in the Alternative, to Dismiss All Individually Named Plaintiffs Except Victor Acevedo [Dkt. 9]
This matter is before us on the above-captioned Motion. We have considered the papers filed in support of and in opposition to this Motion and deem this matter appropriate for resolution without oral argument. L.R. 7-15. As the Parties are familiar with the facts, we will repeat them only as necessary. Accordingly, we rule as follows:
I. Procedural and Factual Background
On July 21, 2014, Plaintiffs, 253 police officers employed by the Los Angeles Police Department (" LAPD"), filed this suit against Defendant the City of Los Angeles (" the City") for alleged violations of the Fair Labor Standards Act (" FLSA"), 29 U.S.C. § § 201, et seq . Specifically, Plaintiffs allege Defendants " failed and refused" to properly compensate them for their overtime hours, including pre- and post-shift work and work during their " Code 7" meal breaks. (See Compl. at ¶ ¶ 22-29.) Plaintiffs previously opted-in to Alaniz, et al. v. City of Los Angeles, CV 04-8592 GAF (AJWx), and Mata, et al. v. City of Los Angeles, CV 07-6782 GAF (AJWx), FLSA collective actions that Judge Feess decertified because the plaintiffs were " not similarly situated . . . particularly in view of the LAPD's clear and unambiguous policy to the contrary." ( See Order, Alaniz, et al. v. City of Los Angeles, CV 04-8592 GAF (AJWx), Dkt. 2961, (C.D. Cal. May 21, 2014) (" Alaniz Order"), at *3; Compl. at ¶ 11.) After Judge Feess decertified Alaniz and Mata, the 2, 393 plaintiffs grouped themselves and filed 28 smaller suits, including the instant matter.
Plaintiffs' Complaint provided no indication as to how they are similarly situated, beyond being employed by Defendants within our geographic jurisdiction. Accordingly, on August 19, 2014, we ordered Plaintiffs to show cause why all but the first named Plaintiff, Victor Acevedo, should not be dismissed without prejudice for misjoinder under Rule 21. [Dkt. 7.] On September 9, 2014, the City filed a Motion to Strike, or in the Alternative,  to Dismiss all Individually Named Plaintiffs Except Victor Acevedo (" Motion"). [Dkt. 9] In this Motion, the City requests that we:
(1) Drop and/or strike all plaintiffs, except for the first named plaintiff, from the Complaint on the grounds of misjoinder and because the Court (the Hon. Gary A. Feess) in the consolidated cases Alaniz, et al. v. City of Los Angeles, Case No. CV 04-8592 GAF (AJWx), and Mata, et al. v. City of Los Angeles, Case No. CV 07-6782, ordered Plaintiffs to pursue their off-the-clock claims against the City individually;
(2) Strike Paragraph 5 from the Complaint, in which Plaintiffs allege that they are similarly situated, on the grounds that Judge Feess held that they were not similarly situated, that they must proceed with their claims individually, and it is immaterial if all but the first named plaintiff are stricken or dropped;
(3) Strike Paragraphs 16 and 18 from the Complaint, in which Plaintiffs allege they performed certain duties while holding the rank of sergeant and/or lieutenant, on the ground that not all Plaintiffs held those ranks;
(4) Strike Paragraph 21 from the Complaint, in which Plaintiffs re-assert " donning and doffing" claims, on the ground that res judicata and collateral estoppel precludes Plaintiffs from making such claims. (Mot. at 19.)
On September 10, 2014, Plaintiffs responded to our OSC. [Dkt. 13.] Plaintiffs' response was one day late. [ See Dkt. 7 (ordering response by September 9, 2014).] On September 15, 2014, we stayed our OSC, deciding instead to resolve the joinder issue via the City's Motion. [Dkt. 15.] Plaintiffs' Opposition to the City's Motion was due October 6, 2014. Plaintiffs filed their Opposition on October 9, 2014.
The City has asked us to strike Plaintiffs' Opposition as untimely and treat " Plaintiffs' failure to file their opposition in a timely fashion . . . [as] consent to grant the City's motion to dismiss all but the first named plaintiff." (Reply at 7.) We decline to do so for two reasons. First, we would prefer to resolve this issue on the merits rather than on a procedural default. Second, the City will not be prejudiced by us doing so. Plaintiffs' Opposition is, for the most part, non-substantive. Instead, it refers us to Plaintiffs' Response to our OSC, which the City was aware of in advance of the due date for its Reply brief. More importantly, as discussed below, Plaintiffs' submissions fail to demonstrate that joinder is appropriate here.
II. The City's Motion to Dismiss All But Named Plaintiff
The City requests that we dismiss all but the named Plaintiff, Victor Acevedo, because Plaintiffs are improperly joined in this action.
A. Legal Standard
Though " misjoinder of parties is not a ground for dismissing an action, " we may drop improperly joined parties. Fed.R.Civ.P. 21; accord Bravado Int'l Grp. Merch. Servs. v. Cha, 2010 WL 2650432, at *5 (C.D. Cal. June 30, 2010) (quoting Fed.R.Civ.P. 21) (" Federal Rule of Civil Procedure Rule 21 governs the misjoinder of parties and permits the court '[o]n motion or on its own . . . at any time, on just terms, [to] add or drop a party[, or] also sever any claim against a party.'"). We have considerable discretion under Rule 21. See Sams v. Beech Aircraft Corp., 625 F.2d 273, 277 (9th Cir. 1980). Federal Rule of Civil Procedure 20 provides the relevant standard for determining whether parties are appropriately joined. Pan Am. World Airways, Inc. v. U.S. Dist. Court for the Central Dist. Of Cal., 523 F.2d 1073, 1079 (9th Cir. 1975) (using Rule 20 as guidance in Rule 21 analysis). Under Rule 20(a)(1), individuals " may join in one action as plaintiffs if: (A) they assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and (B) any question of law or fact common to all plaintiffs will arise in the same action." See also 7 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1653 (2d ed. 1995) (Rule 20(a) " imposes two specific requisites to the joinder of parties. . . . Both of these requirements must be satisfied in order to sustain party joinder under Rule 20(a).").
B. Whether Plaintiffs Are Properly Joined
1. Whether Plaintiffs Were Subject to a Common Series of Occurrences and Share Common Facts
The relevant question here is whether the Plaintiffs have demonstrated, in spite of Judge Feess' decertification Order, that their individual claims are properly joined. In other words, have these 253 Plaintiffs demonstrated that they are subject to the same policy such that their claims arise out of a common series of transactions and occurrences and involve common questions of law or fact? See Coughlin v. Rogers, 130 F.3d 1348, 1351 (9th Cir. 1997) (finding joinder inappropriate under both Rule 20 tests when plaintiffs failed to allege defendant " engaged in a policy of delay").
Plaintiffs readily admit that here, unlike the other 27 lawsuits derived from Alaniz and Mata, their claims are not joined on the basis of common assignments, locations, or ranks. (Opp'n at 2.) Instead, they contend their claims are appropriately joined merely because they " share common claims for Code 7 violations (i.e. missed and/or interrupted meal breaks) . . . based on the common policy of the LAPD [that] permeate[s] throughout the officers joined in this action." (Opp'n at 2-3.) Plaintiffs claim that the LAPD's uniform, violative Code 7 policy is demonstrated by deposition testimony from Earl Paysinger, a former commanding officer of the South Bureau and the LAPD's current Assistant Chief for the Office of Operations, and Bernard Parks, the former LAPD Chief of Police. But, the common policy that Paysinger and Parks describe merely reflects the LAPD's official overtime policy, which prohibits officers from working off-the-clock or skipping meal breaks without their supervisors' approval. ( See OSC Response, Ex. B at 158:7-10 (" Generally speaking, first of all, an employee, either sworn or civilian, must not work over-time in any form without prior supervisory approval."); 167:14-25 (explaining that employees who do not take a Code 7 must note as such in their daily report and notify their supervisors); Ex. C at 72:5-7 (" If they can't get . . . lunch, they are basically required to tell their supervisor and to fill in their overtime slip.").)
The Alaniz and Mata plaintiffs made similar arguments in support of certification on the LAPD's uniform Code 7 policy. ( See Pls.' Opp'n to Decertification, CV 04-8592 GAF (AJWx), Dkt. 2948, at 4 (arguing the Code 7 policy is the " easily identifiable glue amongst all plaintiffs" and that these " uniform claims . . . should be heard collectively").) Judge Feess found that in the face of an " unambiguous written overtime policy that prohibits officers from working off-the-clock" plaintiffs were unable to " establish a single policy, custom, or practice that resulted in FLSA violations, " including uncompensated missed meal breaks. Alaniz Order. Further, because of a " written policy to the contrary, " Judge Feess determined that " the individual conduct of each supervisor must be assessed to determine whether an FLSA violation has occurred." This would prove difficult when " one group of 12 plaintiffs identified over 100 different supervisors to whom they reported during the relevant period." Id. Finally, the evidence the plaintiffs presented was insufficient to demonstrate that there was any kind of uniform discouragement from following official policy. (finding that the plaintiffs' 282 declarations " show at most that a small number of officers worked for supervisors who ignored or countermanded the department's written policy in managing their subordinates").
Here, Plaintiffs worked at different stations, with different ranks, and under different supervisors. They fail to demonstrate, in light of this, that they suffered similar violations of the LAPD's overtime policy or the FLSA. And, as the City points out, some of their declarations, submitted in opposition to decertification in Alaniz and Mata, show otherwise. (Reply at 9 (" Plaintiffs Boccanfuso, Needham, and Weller all claim that their Code 7s were interrupted for different percentages of the time. . . . Toth claims that none of his Code 7s [was] interrupted.").) Plaintiffs' only other argument that joinder is appropriate rests on Gravina v. Los Angeles, LASC Case No. BC356014, a Los Angeles Superior Court case that Plaintiffs claim is a " similar class action claim asserted by sanitation workers for the City of Los Angeles." (Response to OSC at 5.) Plaintiffs argue that since the Gravina Court found that " the City implemented a common policy that systematically denied sanitation workers their rights to a 30-minute duty free meal period, " we should do the same. (Id.) This is a puzzling argument. The fact that a state court found the City had a common policy regarding sanitation workers sufficient to certify a class under California law for violations of California's wage orders has no bearing on our decision here. Accordingly, Plaintiffs have failed to demonstrate they are appropriately joined in this action.
2. Principles of Fundamental Fairness
Even if Plaintiffs had satisfied Rule 20's requirements, joinder is still inappropriate if it does not " comport with the principles of fundamental fairness." Desert Empire Bank v. Ins. Co. of N. Am., 623 F.2d 1371, 1375 (9th Cir. 1980). We have " discretion to refuse joinder in the interest of avoiding prejudice and delay." Acevedo v. Allsup's Convenience Stores, Inc., 600 F.3d 516, 521-22 (5th Cir. 2010) (finding joinder of the plaintiffs' FLSA claims improper when it would not " facilitate judicial economy and when different witnesses and documentary proof would be required for plaintiffs' claims"). Plaintiffs argue that disallowing joinder here would prove inefficient as " [d]ismissal of these joined plaintiffs' claims could potentially lead to up to 255 individual lawsuits being filed in the Central District of California." (OSC Response at 6.) We disagree. As Plaintiffs are not similarly situated, even if Plaintiffs remained joined in this action, we would still have to deal with 253 individual suits. Judge Feess recognized this in his transfer order, stating that " [e]ach case is different and assigning these cases to the same judge is not likely to result in judicial [efficiency]." [ See Dkt. 6]
The Alaniz decertification Order demonstrates that even allowing joinder of a small number of plaintiffs who worked different assignments and shifts during the relevant period could yield an " unmanageable, chaotic and counterproductive" trial. See Alaniz Order (internal quotation marks removed). Judge Feess conducted an exemplar trial in a related case for just four plaintiffs with off-the-clock claims against City. Since these plaintiffs " held three different ranks, worked in nine different stations and each for multiple superior officers, " the trial lasted eight days and " involved 20 witnesses, 14 of whom were called by the City." Here, we have 253 Plaintiffs, with few commonalities, who have failed to demonstrate that allowing this case to proceed will not yield 253 mini-trials with hundreds of witnesses.
In response to such concerns, Plaintiffs offer what they deem an effective procedural solution. They suggest that " [t]he most efficient means moving forward would be to allow each of the joined plaintiffs to remain in this case and consolidate them for purposes of discovery and scheduling orders." (OSC Response at 6.) Then, Plaintiffs argue, we can " hold a second set of scheduling conferences and a determination can be made as to whether a consolidated trial can be held or if 'mini trials' need to be held for the individual plaintiffs." (Id.) We are not persuaded that this would be an effective or efficient solution. We have the ability to consolidate discovery even if Plaintiffs proceed with separate actions. Further, Judge Carney rejected a similar solution offered by Plaintiffs' counsel, Gregory Peterson, in Weaver v. County of Orange . There, Peterson suggested that " the Court should permit the case to proceed as is and then may either conduct separate trials pursuant to Federal Rule of Civil Procedure 42(b) or sever the claims pursuant to Federal Rule of Civil Procedure 20." Order Granting Defendant's Motion to Strike and/or Dismiss, Weaver, et al. v. County of Orange, SACV10-00101-CJC (ANx), Dkt. 15 (C.D. Cal. Apr. 29, 2010) (" Weaver Order"), at *194. Judge Carney found that the proposal would yield " a series of individual trials that flow from a single action" which was " the sort of inefficiency that decertification was designed to avert." Id. Other courts have similarly found that deferring the joinder issue to a later date is inefficient and " only serves to aid Plaintiffs' attempt to avoid filing fees." See Sony BMG Music Entm't v. Does 1-5, No. CV 07-2434 SJO (JCx), (C.D. Cal. Aug. 29, 2007) (further finding that " [w]hile Plaintiffs are certainly entitled to vindicate their rights, they must play by the Federal Rules in doing so").
Plaintiffs' other efficiency and fairness arguments similarly fail. They argue that with assignment to multiple judges, " plaintiffs working under the same pay policies and practices can be subject to inconsistent rulings." (OSC Response at 7.) Plaintiffs assume the policies are the same. In fact, the opposite is true because the policy that is stated as applicable across the board is the very policy Plaintiffs seek to disprove. Thus, we must assess the " individual conduct of each supervisor . . . to determine whether an FLSA violation has occurred." See Alaniz Order If anything, any inconsistent rulings will ultimately be because of Plaintiffs' unique factual scenarios and working environments and will not prove prejudicial. Plaintiffs argue that separate suits would present an unjustifiable use of public funds because " the City will ultimately have to reimburse Plaintiffs' expenses in pursuing these claims." (Id.) But, Plaintiffs' argument is presumptuous--under the FLSA, the City will have to pay Plaintiffs' filing fees only if Plaintiffs win. The possibility of fee shifting is no reason to allow this case to proceed with disparate 253 Plaintiffs, especially when the City, the Party who would ultimately be burdened by this prospect, requests that Plaintiffs' suits proceed individually.
III. The City's Motions to Strike
A. Legal Standard
A party may move to strike from a pleading any " insufficient defense or any redundant, immaterial, impertinent or scandalous matter." Fed.R.Civ.P. 12(f). However, if there is any doubt as to whether the allegations might be an issue in the action, the motion should be denied. Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993), rev'd on other grounds, 510 U.S. 517, 114 S.Ct. 1023, 127 L.Ed.2d 455 (1994). As with motions to dismiss for failure to state a claim, the grounds for a motion to strike must appear on the face of the pleading under attack, or from matters that the court may judicially notice. In re Toyota Motor Corp., 790 F.Supp.2d 1152, 1170 (C.D. Cal. 2011). Moreover, the pleading under attack is viewed in the light most favorable to the pleader. California ex rel. State Lands Comm'n v. United States, 512 F.Supp. 36, 39 (N.D. Cal. 1981). Motions to strike are regarded with disfavor, as they are often used as delaying tactics, and should not be granted " unless it is clear that the matter to be stricken could have no possible ...