United States District Court, E.D. California
SHLANDA JOHNSON, on behalf of herself and all similarly situated Aggrieved Employees, Plaintiffs,
LKQ FOSTER AUTO PARTS, INC., a Corporation, and DOES 1 through 50, inclusive, Defendants.
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
explained below, the court GRANTS defendant’s motion to
dismiss IN PART.
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.
RULE 12(b)(1): JURISDICTION
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
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).
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
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
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
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. Compl.
¶¶ 1, 2, 11. Diversity jurisdiction exists on the
face of the complaint.
the court DENIES defendant’s motion to dismiss under
RULE 12(b)(6): FAILURE TO STATE A CLAIM
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.
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, ...