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Wert v. U.S. Bancorp

United States District Court, S.D. California

December 18, 2014

MONICA R. WERT, Individually and on Behalf of Other Members of the Public Similarly Situated, Plaintiff,
U.S. BANCORP, et al., Defendants.


CYNTHIA BASHANT, District Judge.

On November 13, 2013, Plaintiff Monica R. Wert commenced this employment class action against Defendants U.S. Bancorp and U.S. Bank National Association ("U.S. Bank" or "USB") in the San Diego Superior Court. Thereafter, Defendants removed this action to federal court. Plaintiff now moves for leave to file a Second Amended Complaint ("SAC") under Federal Rule of Civil Procedure 15(a). Defendants oppose.

The Court finds this motion suitable for determination on the papers submitted and without oral argument. See Civ. L.R. 7.1(d.1). For the following reasons, the Court GRANTS IN PART and DENIES IN PART Plaintiff's motion.


"[W]ithin the last year, " Plaintiff alleges that she worked for Defendants as a bank teller. (PSAC ¶ 25.) According to Plaintiff, she complied with the exhaustion requirements of the Private Attorney General Act of 2004 ("PAGA") by "providing notice by certified letter on October 7, 2013, to Defendants and the LWDA concerning the PAGA claims Plaintiff intends to pursue."[2] ( Id. ¶ 13(e).)

Plaintiff alleges that "[t]he wage statements Defendants furnished, and continue to furnish, to Plaintiff and other California employees did not meet the requirements of California Labor Code § 226(a), including by failing to: (1) show the total hours worked by the employee; (2) adequately show the deductions from wages; (3) itemize the dates in prior pay periods to which adjustments were made; [and] (4) itemize the inclusive dates of the pay period, including the pay period begin date[.]" (PSAC ¶¶ 28.) Plaintiff alleges that these omissions caused her and Defendants' other California employees injuries. ( Id. )

Plaintiff also alleges that:

During the four years preceding the filing of Plaintiff's original Complaint through the present, Defendants employed Plaintiff and Premium Pay Class Members who were regularly scheduled to work, and did work, more than five hours in a work day/work period. There were days where Plaintiff and Premium Pay Class Members worked more than five hours and were not provided with meal periods and were, in fact, prevented from taking meal periods due to work. Specifically, Plaintiff and Premium Class Members were unable to take their meal periods because they were required to attend to client needs, were required to cover the bank, and were required to complete urgent tasks assigned to them. In these instances, their work prevented them from taking any meal period whatsoever, or, a timely meal period within the first five hours of work. These missed and/or late meal periods were caused by work restrictions-not employees' desire or choice to skip or delay meal periods. These employees did not waive their meal periods.

(PSAC ¶ 30.) She adds that the specific dates when Defendants allegedly failed to provide meal periods "may be ascertained through a review of their time and pay records, " and were also "documented on employees' itemized wage statements through the payment of Penalty Py' [sic] and/or other paid' and/or other pai' [sic]." ( Id. ¶¶ 31-32.) The missed meal-period pay also allegedly "did not account for non-discretionary, production bonus compensation paid to them and other compensation required to be included in their regular rate of pay." ( Id. ¶ 34.)

On November 13, 2013, Plaintiff commenced this employment class action against Defendants in the San Diego Superior Court. On December 20, 2013, Defendants removed this action to this Court. On July 14, 2014, Plaintiff filed her First Amended Complaint ("FAC") after being given leave by the Court. Defendants' motion to dismiss the FAC, which is fully briefed, is currently pending before the Court. Plaintiff now moves for leave to file a SAC under Rule 15(a). The Proposed SAC drops two claims from the FAC filed pursuant to California Labor Code § 2802, but adds one claim on behalf of the class for failure to provide meal periods and pay proper premium wages in violation of California Labor Code §§ 512 and 226.7. Defendants oppose the motion.


Rule 15(a) of the Federal Rules of Civil Procedure provides that after a responsive pleading has been served, a party may amend its complaint only with the opposing party's written consent or the court's leave. Fed.R.Civ.P. 15(a). "The court should freely give leave when justice so requires, " and apply this policy with "extreme liberality." Id .; DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987). However, leave to amend is not to be granted automatically. Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002) (citing Jackson v. Bank of Hawaii, 902 F.2d 1385, 1387 (9th Cir. 1990)). Granting leave to amend rests in the sound discretion of the district court. Pisciotta v. Teledyne Indus., Inc., 91 F.3d 1326, 1331 (9th Cir. 1996).

The Court considers five factors in assessing a motion for leave to amend: (1) bad faith, (2) undue delay, (3) prejudice to the opposing party, (4) futility of the amendment, and (5) whether the plaintiff has previously amended the complaint. Johnson v. Buckley, 356 F.3d 1067, 1077 (9th Cir. 2004); see also Foman v. Davis, 371 U.S. 178, 182 (1962). The party opposing amendment bears the burden of showing any of the factors above. See DCD Programs, 833 F.2d at 186. Of these factors, prejudice to the opposing party carries the greatest weight. Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). However, absent prejudice, a strong showing of the other factors may support denying leave to amend. See id.

"Futility of amendment can, by itself, justify the denial of a motion for leave to amend." Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995). Futility is a measure of the amendment's legal sufficiency. "[A] proposed amendment is futile only if no set of facts can be proved under the amendment... that would constitute a valid and sufficient claim or defense." Miller v. Rykoff-Sexton, Inc., 845 F.2d 209, 214 (9th Cir. 1988). Thus, the test of futility is identical to the one applied when considering challenges under Rule 12(b)(6) for failure to state a claim upon which relief may be granted. Baker v. P. Far E. Lines, Inc., 451 F.Supp. 84, 89 (N.D. Cal. 1978); see Saul v. United ...

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