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Mendoza v. Zambrano

United States District Court, N.D. California

June 16, 2017

ANTHONY M. MENDOZA, Plaintiff,
v.
AARON ZAMBRANO, et al., Defendants.

          ORDER GRANTING DEFENDANTS' MOTION TO DISMISS; ORDER DISCHARGING ORDER TO SHOW CAUSE RE: DKT. NOS. 11 & 25

          KANDIS A. WESTMORE United States Magistrate Judge.

         On April 3, 2017, Defendants 24/7 Rooter & Plumbing Services, Inc., Aaron Zambrano, and Rey Zambrano filed a motion to dismiss Plaintiff Anthony Mendoza's first amended complaint on the grounds that the complaint fails to state a claim upon which relief can be granted. (Defs.' Mot., Dkt. No. 11.) Plaintiff failed to timely file an opposition, and the Court issued an order to show cause on April 26, 2017. (Dkt. No. 25.)

         On June 15, 2017, the Court held a hearing, and, after careful consideration of the parties' arguments and the applicable legal authority, for the reasons set forth below, GRANTS Defendants' motion to dismiss with leave to amend.

         I. BACKGROUND

         Plaintiff Anthony Mendoza alleges that Defendants 24/7 Rooter & Plumbing Services, Inc., Aaron Zambrano, and Rey Zambrano violated the Fair Labor Standards Act (“FLSA”) during the course of his employment. Plaintiff worked for Defendants as a plumber from January 1, 2016 to April 1, 2016, and from August 1, 2016 to October 7, 2016. (First Am. Compl., “FAC, ” Dkt. No. 6 ¶ III.B-C. His duties included, but were not limited to, going to addresses as directed by management, analyzing and troubleshooting problems, providing options to clients, repairing and replacing plumbing, applying for permits if required, and collecting money for the services provided. (FAC ¶ III.C.) Plaintiff was originally compensated in the amount of 25% of the job completed, but in March 2016, his employers changed the compensation structure to 15% of the job, plus $13 per hour. (FAC ¶ III.D.) However, if 25% of the job was more money, the employee was paid the higher amount. Id. Plaintiff alleges that he worked 50 hours per week. (FAC ¶ III.E.) Plaintiff alleges that he was unlawfully terminated on October 7, 2016. (FAC ¶ F.3.)

         On January 12, 2017, Plaintiff filed the first amended complaint. On April 3, 2017, Defendants filed a motion to dismiss. (Defs.' Mot., Dkt. No. 11.) Plaintiff did not file a timely opposition, so the Court issued an order to show cause on April 26, 2017, and advised Plaintiff that the Federal Pro Bono Project's Help Desk was available to assist him in complying with the order to show cause. (4/26/17 Order to Show Cause, Dkt. No. 25.) The order to show cause was returned by the U.S. Postal Service as undeliverable. (Dkt. No. 26.)[1]

         On May 23, 2017, Plaintiff filed an untimely opposition, but did not respond to the order to show cause. (Pl.'s Opp'n, Dkt. No. 28.) Plaintiff also improperly attached exhibits to his opposition, which are stricken. On May 24, 2017, Defendants filed their reply. (Defs.' Reply, Dkt. No. 29.)

         II. LEGAL STANDARD

         The Federal Rules of Civil Procedure require a complaint to contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. Pro. 8(a)(2). However, “a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, (1957)).

         Under Federal Rule of Civil Procedure 12(b)(6), a party may file a motion to dismiss based on the failure to state a claim upon which relief may be granted. A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the claims asserted in the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001).

         In considering such a motion, a court must "accept as true all of the factual allegations contained in the complaint, " Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (citation omitted), and may dismiss the case or a claim "only where there is no cognizable legal theory" or there is an absence of "sufficient factual matter to state a facially plausible claim to relief." Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010) (citing Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009); Navarro, 250 F.3d at 732) (internal quotation marks omitted).

         A claim is plausible on its face when a plaintiff "pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678 (citation omitted). "Threadbare recitals of the elements of a cause of action" and "conclusory statements" are inadequate. Iqbal, 556 U.S. at 678; see also Epstein v. Wash. Energy Co., 83 F.3d 1136, 1140 (9th Cir. 1996) ("[C]onclusory allegations of law and unwarranted inferences are insufficient to defeat a motion to dismiss for failure to state a claim."). "The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully . . . When a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief." Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557) (internal citations omitted).

         The Court has an obligation to construe pro se pleadings liberally “to afford the petitioner the benefit of any doubt.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (discussing post-Iqbal pleading standards). Despite the flexible pleading policy of the Federal Rules of Civil Procedure, a complaint must give fair notice and state the elements of the claim plainly and succinctly. See Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). A plaintiff must allege with at least some degree of particularity overt facts which a defendant engaged in to support the plaintiff's claim. Id. at 649.

         Generally, if the court grants a motion to dismiss, it should grant leave to amend even if no request to amend is made "unless it determines that the pleading could not possibly be cured by the allegation of other facts." Lopez v. ...


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