United States District Court, N.D. California
ANTHONY M. MENDOZA, Plaintiff,
AARON ZAMBRANO, et al., Defendants.
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS;
ORDER DISCHARGING ORDER TO SHOW CAUSE RE: DKT. NOS. 11 &
A. WESTMORE United States Magistrate Judge.
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.)
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.
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.)
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.)
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.
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)).
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).
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
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).
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.
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."
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