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Perez v. Wells Fargo & Co.

United States District Court, N.D. California

December 11, 2014

MONIQUE PEREZ, et al., Plaintiffs,
v.
WELLS FARGO AND CO., et al., Defendants

For Monique Perez, Thaxton Rowe, Porcelynne Hawthorne, Corry A Williams, Elizabeth Villa-Montes, Karla Salazar, Brian Lynch, Sezgin Unay, John Sorocenski, Brandon Grzan, John Lynch, Jason L. Hoffman, Sona K. Anand, Plaintiffs: Genevieve Estrada, Jose Moises Cedillos, LEAD ATTORNEYS, Houston, TX; Rhonda Kaye Hunter Wills, Wills Law Firm, PLLC, Houston, TX; John Manuel Padilla, Padilla & Rodriguez, LLP, Los Angeles, CA.

For Wells Fargo & Company, Wells Fargo Bank, N.A., WFC Holdings Corporation, Wachovia Corporation, Wachovia Bank, N.A., Defendants: Christian Joseph Rowley, LEAD ATTORNEY, Seyfarth Shaw LLP, San Francisco, CA; Jessica Lieberman, LEAD ATTORNEY, Seyfarth Shaw, Boston, MA; Jill Crawley Griset, LEAD ATTORNEY, McGuireWoods, LLP, Charlotte, NC; Jill Ann Porcaro, LEAD ATTORNEY, Seyfarth Shaw LLP, Los Angeles, CA; Richard Lee Alfred, LEAD ATTORNEY, PRO HAC VICE, Seyfarth Shaw LLP, Boston, MA; Timothy Mitchell Watson, LEAD ATTORNEY, PRO HAC VICE, Seyfarth Shaw, Houston, TX; Kendra Koneman Paul, Rachel Megan Hoffer, Seyfarth Shaw LLP, Houston, TX.

Page 1185

ORDER GRANTING MOTION FOR JUDGMENT ON THE PLEADINGS

PHYLLIS J. HAMILTON, United States District Judge.

Before the court is the motion of defendants Wells Fargo & Company, Wells Fargo Bank, N.A., WFC Holdings Corporation, Wachovia Corporation, and Wachovia Bank, N.A. Wells Fargo" ) for judgment on the pleadings on the first two causes of action asserted in the complaint. Having read the parties' papers and carefully considered their arguments and the relevant legal authority, the court hereby GRANTS the motion as follows.

BACKGROUND

This is a wage-and-hour case filed as a proposed class and collective action. Plaintiffs assert claims under the Fair Labor Standards Act, 29 U.S.C. § 201, et seq. FLSA" ), the California Labor Code, California Business & Professions Code § 17200, California common law, and Texas and New York law. The original complaint was filed on March 3, 2014, and the first amended complaint (" FAC" ) was filed on March 28, 2014.

The twelve named plaintiffs allege that they were employed by Wells Fargo as non-exempt employees in California (three plaintiffs), Texas (two plaintiffs), Florida (one plaintiff), New York (seven plaintiffs), New Jersey (one plaintiff, also one of the seven employed in New York). A group of eight of the twelve named plaintiffs are identified in the FAC as the " FLSA plaintiffs" -- Monique Perez, Porcelynne Hawthorne,

Page 1186

Thaxton V. Rowe Jr., Corra A. Williams, Karla P. Salazar, John Sorocenski, John K. Lynch, and Sona K. Anand.

In the first cause of action, the FLSA plaintiffs assert individual " off-the-clock" claims for FLSA violations. FAC ¶ 118. They allege that Wells Fargo " failed and refused to pay overtime compensation and/or minimum wages . . . in violation of the FLSA." FAC ¶ 125; see also FAC ¶ 57 (allegation that plaintiffs " were not paid regular wages and/or overtime compensation" ); ¶ 66 (allegation that plaintiffs " were not paid regular wages and/or overtime wages" ). Plaintiffs do not state as to each individual plaintiff what type of " off-the-clock" work he/she allegedly performed, and do not provide any other factual details. Rather, they simply provide " examples" of " off-the-clock" work they claim (as a group) that they performed. See FAC ¶ 116.

In the second cause of action, which is pled as an FLSA collective action claim, the FLSA plaintiffs allege that Wells Fargo failed to pay for recorded breaks of 20 minutes or less as required by the FLSA. FAC ¶ ¶ 132-136. The FAC defines the FLSA collective action as including

[a]ll current and former non-exempt Wells Fargo employees nationwide who at any time during the three years preceding the filing of this lawsuit through the date of disposition of, or judgment in, this action, recorded one or more breaks of 20 minutes or less in duration for which they were not paid regular wages and/or overtime compensation.

FAC ¶ 67. The FLSA plaintiffs assert that Wells Fargo " was advised and made aware that it must pay its non-exempt employees for breaks of 20 minutes or less in duration," and that Wells Fargo " was aware that its time system and pay system did not pay for recorded breaks regardless of length." FAC ¶ ¶ 134-135.

Plaintiffs assert that this conduct constitutes a " willful" violation of the FLSA for purposes of 29 U.S.C. § 255(a) (providing for a three-year statute of limitations for willful failure to pay minimum wages or overtime compensation, as opposed to usual two-year limitations period). Again, however, there are no facts alleged as to the named plaintiffs.

On June 24, 2014, the FLSA plaintiffs filed a motion to conditionally certify a nationwide FLSA collective action, noticing the hearing for July 30, 2014. On June 26, 2014, the court issued an order staying the briefing on the motion pending the July 24, 2014 CMC. At the CMC, the court terminated the certification motion, and ordered the parties to meet and confer regarding the proposed amended complaint plaintiffs had indicated they planned on filing. The court also set a briefing schedule for the certification motion. Plaintiffs filed the certification motion as directed on August 1, 2014. However, they did not file a second amended complaint.

On October 27, 2014, before its opposition to the certification motion was due, Wells Fargo filed the present motion for judgment on the pleadings as to the first and second causes of action (the two FLSA claims). That motion was noticed for hearing on December 17, 2014. At Wells Fargo's request, the hearing date on the certification motion was continued one week, to the same date as the hearing on the motion to dismiss.

Wells Fargo seeks judgment on the pleadings as to both FLSA causes of action, arguing that neither states a claim.

DISCUSSION

A. Legal Standard

" After the pleadings are closed -- but early enough not to delay ...


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