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Mix v. Neeb

United States District Court, E.D. California

November 14, 2014

DAVID MIX, Plaintiffs,
KIMBERLY K. NEEB; MARK A. SAMPSON; SAMPSON TRANSPORT LLC, a Wyoming Limited Liability Company; and DOES 1 to 10, [1] Defendants

For David Mix, Plaintiff: Richard John Morin, LEAD ATTORNEY, Law Office of Rick Morin, Sacramento, CA.

For Mark A. Sampson, Sampson Transport, LLC, Kimberly K. Neeb, Defendants: Joseph D. Bowen, PHV, LEAD ATTORNEY, PRO HAC VICE, Joseph D. Bowen, Attorney at Law, P.S., Mount Vernon, WA; Stacy E. Don, LEAD ATTORNEY, Toledo Don LLP, Roseville, CA.



This matter is before the court on the named defendants' motion to dismiss the complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure. The matter was submitted without argument. As explained below, the court denies the defendants' motion.


The complaint makes the following allegations: The plaintiff, David Mix, lives in Sacramento County, California. Compl. 1:24-25, ECF No. 1. He began working with the defendant, Sampson Transport, LLC, as a truck driver on about June 10, 2013. Id. at 2:28-3:1.

Sampson is a Wyoming company and has its principal place of business in Washington. Id. at 2:2-4. Kimberly Neeb and Mark Sampson are Washington residents and Sampson's owners. Id. at 1:26-2:1. This order refers to the defendants collectively as " Sampson." Mr. Mix entered a " written lease and independent contractor agreement" (ICA) with Sampson around the time their relationship began, on or about June 10, 2013. Id. at 3:5-6. He transported goods for Sampson's clients, id . at 3:7, and was paid a portion of his receipts upon completion of each job. Id. at 3:16. Mr. Mix claims Sampson " exerted significant control" over his activities. Id. at 3:11. It " control[led] the manner in which [he] performed his job." Id. at 3:12-13. " Many times" Sampson loaded his truck without asking whether he would accept the job. Id. at 3:8-10. Sampson required him to accept assignments under threat it would terminate his contract. Id. at 3:13-15. Expenses were deducted from his invoices. Id. at 3:17. Sampson paid him inconsistently even though he understood he would be paid on the first of every month. Id. at 3:17-20. He claims Sampson still owes him money. Id. at 3:21-23. Sampson required him to work overtime hours but did not pay him overtime wages. Id. at 8:15-17. Mix paid for maintenance and repairs. Id. at 4:27-5:2.

At first Mix leased his truck and trailer from Sampson. Id. at 3:24-25. In late October, 2013, he agreed to purchase a truck and trailer from Sampson on credit. Id. at 3:28-4:7. The transaction was completed in two separate agreements: one for the truck and one for the trailer. Id. Both carried 24.9 percent interest with monthly payments due over a four year period beginning on January 8, 2014. Id. Mix alleges he has made all his payments on time, but Sampson refuses to accept his money and has attempted to repossess his truck and trailer. Id. at 4:19-26. Thanks to the " uncertainty" caused by Sampson's efforts to repossess his truck and trailer, Mix has been unable to work. Id. at 5:3-6. He filed his complaint in this district on July 7, 2014 on the basis of the court's diversity jurisdiction.

On these allegations Mr. Mix advances six causes of action, all under state law: (1) breach of the ICA, id . at 5:11-27; (2) breach of the agreement to purchase the truck, id . at 6:1-15; (3) breach of the agreement to purchase the trailer, id . at 6:16-7:2; (4) damages arising from Sampson's misclassification of him as an independent contractor rather than an employee, id . at 7:3-8:10; (5) unpaid overtime wages, id . at 8:11-9:16; and (6) unfair business practices in violation of California Civil Code § 17200, id . at 9:17-10:3.

Sampson filed a motion to dismiss, Defs.' Mot. Dismiss (Mot.), ECF No. 10, and supporting memorandum of points and authorities, Mem. P.& A. (Mem.), ECF No. 10-1, on September 8, 2014. Sampson attached to its motion the Declaration of Kimberly Neeb. Neeb Decl., ECF No. 10-3. Sampson amended its motion on September 9, 2014 to clarify that it also sought dismissal of the plaintiff's employment claims. Am. Mot. Dismiss 2:1-2, ECF No. 11. On September 26, 2014, Mr. Mix filed an opposition, Pl.'s Opp'n (Opp'n), ECF No. 12, and an Objection to Evidence challenging the admissibility of the Neeb Declaration, Pl.'s Obj. to Evidence, ECF No. 12-1. On October 3, 2014, the defendants replied and submitted an amended Declaration of Kimberly Neeb. Defs.' Reply, ECF No. 13; Am. Neeb Decl., ECF No. 13-1.

While Sampson's filings lack clarity, it appears Sampson argues first for dismissal of the first three causes of action, the contract claims, because one of its agreements with Mr. Mix includes a forum selection clause in favor of Washington. Mot. at 2:7-9. Second, it argues for a dismissal of the misclassification, overtime wages, and unfair business practices claims because Mix was not Sampson's employee, but an independent contractor. Mem. at 4:25-11:24; Am. Mot. Dismiss 2, ECF No. 11. Sampson also argues that Mix has not alleged any cause of action against the individual defendants, Mr. Sampson and Ms. Neeb, Mem. at 11:27-12:2, and that the defendants are entitled to attorneys' fees " under operation of contract." Mem. 12:4-5. The court considers each of these arguments in turn.


A. Contract Claims

Sampson moves to dismiss the contract claims " on the grounds of improper venue." Mot. at 2:7. It requests the court " enforce the forum and venue selection clause" but brings its motion to dismiss " pursuant to Federal Rule of Civil Procedure 12(b)(6)." Mot. at 2:7-9. In their reply, the defendants also request this court act under 28 U.S.C. § 1404(a) to transfer the case to the Western District of Washington. Reply at 3:7-8. Even though the request is made first in reply, the court considers it in light of the court's ability sua sponte to transfer a case under § 1404(a). See, e.g., Washington Pub. Utilities Grp. v. U.S. Dist. Court, 843 F.2d 319, 326 (9th Cir. 1987) (" [S]ection 1404(a) does not expressly require that ...

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