Johnson v. LKQ Foster Auto Parts Inc.

          ORDER

         This matter is before the court on defendant LKQ Foster Auto Parts, Inc.’s motion to dismiss. Mot., ECF No. 13. Plaintiff Shlanda Johnson opposes. Opp’n, ECF No. 16. Defendant has replied. Reply, ECF No. 17. Having considered the arguments presented by the parties in the papers, the court finds this matter appropriate for resolution without a hearing.

         As explained below, the court GRANTS defendant’s motion to dismiss IN PART.

         I. BACKGROUND

         On November 19, 2015, plaintiff filed this case against defendant, alleging defendant retaliated against her for making a complaint about defendant, in violation of California Labor Code section 1102.5. See generally Compl., ECF No. 1. Plaintiff filed the action as an individual and on behalf of other similarly situated employees under California Labor Code Private Attorneys General Act of 2004 (PAGA), California Labor Code section 2699. Defendant now seeks to dismiss plaintiff’s claim for (1) lack of subject matter jurisdiction, (2) failure to state a claim, and (3) failure to join a necessary and indispensable party. See generally Mot.

         II. RULE 12(b)(1): JURISDICTION

         A. Legal Standard

         Federal courts are courts of limited jurisdiction and, until proven otherwise, cases lie outside the jurisdiction of the court. Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377-78 (1994). Subject matter jurisdiction may be challenged by either party or addressed by the court sua sponte. Fed.R.Civ.P. 12(b)(1), (h)(3); see also Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583-84 (1983). A Rule 12(b)(1) jurisdictional attack may be either facial or factual. White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). In a facial attack, the complaint is challenged as failing to establish federal jurisdiction, even assuming all the allegations are true and construing the complaint in the light most favorable to plaintiff. See Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004).

         By contrast, in a factual attack, the challenger provides evidence that an alleged fact is false, resulting in a lack of subject matter jurisdiction. Id. In these circumstances, the allegations are not presumed to be true and “the district court is not restricted to the face of the pleadings, but may review any evidence, such as affidavits and testimony, to resolve factual disputes concerning the existence of jurisdiction.” McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988). “Once the moving party has converted the motion to dismiss into a factual motion by presenting affidavits or other evidence properly brought before the court, the party opposing the motion must furnish affidavits or other evidence necessary to satisfy its burden of establishing subject matter jurisdiction.” Savage v. Glendale Union High Sch., 343 F.3d 1036, 1039 n.2 (9th Cir. 2003).

         Jurisdictional dismissal is “exceptional” and warranted only “‘where the alleged claim under the constitution or federal statutes clearly appears to be immaterial and made solely for the purpose of obtaining federal jurisdiction or where such claim is wholly insubstantial and frivolous.’” Safe Air for Everyone, 373 F.3d at 1039 (quoting Bell v. Hood, 327 U.S. 678, 682- 83 (1948)). Accordingly, the Ninth Circuit has held that “[j]urisdictional finding of genuinely disputed facts is inappropriate when ‘the jurisdictional issue and substantive issues are so intertwined that the question of jurisdiction is dependent on the resolution of factual issues going to the merits of an action.’” Sun Valley Gasoline, Inc. v. Ernst Enters., Inc., 711 F.2d 138, 139 (9th Cir. 1983) (quoting Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983)). “Normally, the question of jurisdiction and the merits of an action will be considered intertwined where . . . a statute provides the basis for both the subject matter jurisdiction of the federal court and the plaintiff's substantive claim for relief.” Id. (quotation omitted).

         B. Discussion

         Plaintiff asserts the court has subject matter jurisdiction over her claims based on 28 U.S.C. § 1332. Under that section, the court has jurisdiction in cases in which the parties are citizens of different states and the amount in controversy exceeds $75, 000. Defendant does not dispute the amount in controversy. It argues rather that Redding Auto Center Inc. (Redding), a California corporation, is the correct defendant, and plaintiff and Redding are not diverse; thus the complaint lacks subject matter jurisdiction. The court is unpersuaded.

         Here, defendant brings a factual attack against plaintiff’s complaint by introducing plaintiff’s W-2 forms, which listed Keystone Automotive Industries (Keystone) as plaintiff’s employer. Mot., Ex. 2. Defendant has not asked for judicial notice but attaches the W-2 forms to, the declaration of Keystone’s human resource manager, Amanda Allen, which itself is attached to defendant’s motion. The declaration states that Keystone issued the W-2 forms to plaintiff. In general, a court may not consider items outside the pleadings when deciding a motion to dismiss, but it may consider items of which it can take judicial notice. Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 1994). While the court may take judicial notice on its own, it cannot take notice of the W-2 forms here. Ramirez v. Manpower, Inc., No. 13-02880, 2014 WL 3378306, at *1 n.1 (N.D. Cal. July 10, 2014) (denying defendants’ request to take judicial notice of plaintiff’s redacted W-2 form, because facts within ir could not be readily determined). Though defendant provides a declaration from Allen, defendant does not lay a foundation for the W-2 forms by, for example, demonstrating that Allen had personal knowledge of the W-2 forms’ contents. Additionally, the documents do not contain facts that “can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” See Fed. R. Evid. 201(b); Ramirez, 2014 WL 3378306, at *1 n.1. Defendant has not pointed to any other judicially noticeable evidence in the record to support its argument that the only entity that could be plaintiff’s employer is Redding, let alone explain its relationship to Keystone beyond the conclusory statement provided in the Allen declaration.

         Furthermore, though defendant’s challenge cannot be construed as facial, as it challenges the complaint’s factual basis, even under a facial challenge, defendant would not succeed. Under a facial challenge, a complaint is subject to dismissal under Rule 12(b)(1) if subject matter jurisdiction is absent from the face of the complaint. See Doe v. Holy See, 557 F.3d 1066, 1073 (9th Cir. 2009). In a facial challenge, the court assumes the plaintiff’s factual allegations to be true and draws all reasonable inferences in its favor. Id. Here, plaintiff alleges defendant hired her, and defendant is a citizen of Delaware and Illinois whereas plaintiff is a resident of California.^[2] Compl. ¶¶ 1, 2, 11. Diversity jurisdiction exists on the face of the complaint.

         Accordingly, the court DENIES defendant’s motion to dismiss under Rule 12(b)(1).

         III. RULE 12(b)(6): FAILURE TO STATE A CLAIM

         A. Legal Standard

         A party may move to dismiss for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). The motion may be granted only if the complaint lacks a “cognizable legal theory” or if its factual allegations do not support a cognizable legal theory. Hartmann v. Cal. Dep’t of Corr. & Rehab., 707 F.3d 1114, 1122 (9th Cir. 2013). The court assumes these factual allegations are true and draws reasonable inferences from them. Iqbal, 556 U.S. at 678. A complaint need contain only a “short and plain statement of the claim showing that the pleader is entitled to relief, ” Fed.R.Civ.P. 8(a)(2), not “detailed factual allegations, ” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). But this rule demands more than unadorned accusations; “sufficient factual matter” must make the claim at least plausible. Iqbal, 556 U.S. at 678. In the same vein, conclusory or formulaic recitations of elements do not alone suffice. Id. (quoting Twombly, 550 U.S. at 555). Evaluation under Rule 12(b)(6) is a context-specific task drawing on “judicial experience and common sense.” Id. at 679.

         B. Discussion

         Defendant next argues plaintiff has not stated a claim, because defendant is not her employer. At the time of the events relied on in the complaint, ...