United States District Court, E.D. California
JENNIFER BRUM and MICHAEL CAMERO, individually, and on behalf of other members of the general public similarly situated, Plaintiffs,
MARKETSOURCE, INC. WHICH WILL DO BUSINESS IN CALIFORNIA AS MARYLAND MARKETSOURCE, INC., a Maryland corporation; ALLEGIS GROUP, INC., a Maryland corporation; and DOES 1 through 10, inclusive, Defendants.
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS' MOTION TO DISMISS AND MOTION TO
A. MENDEZ UNITED STATES DISTRICT JUDGE.
Jennifer Brum and Michael Camero (collectively,
“Plaintiffs”) sued Defendants MarketSource, Inc.
and Allegis Group, Inc. (collectively,
“Defendants”) in state court for various wage and
hour violations. ECF No. 1-1. Defendants removed the case to
federal court. ECF No. 1. Defendants move to dismiss and move
to strike portions of Plaintiffs' First Amended Complaint
(“FAC”). ECF No. 7. Plaintiffs oppose. ECF No.
provide retail sales personnel to dozens of Target Mobile
kiosks throughout California. FAC ¶ 26. Brum worked as a
“Wireless Team Lead” at several Target stores
throughout Northern California. FAC ¶ 3. Camero worked
as a “Target Mobile Manager” at two Target stores
in San Diego, California. FAC ¶ 4.
allege Defendants violated overtime, meal, and rest period
laws and did not properly report wage statements. FAC at
13-19, 21-27. Plaintiffs also contend Defendants required all
new hires to take drug tests as a condition of employment
without paying for the time and expense to travel to and from
the drug testing facility and to take the test. FAC ¶
seek to represent one class and one subclass, but have not
yet filed a motion for class certification. FAC ¶¶
move to dismiss Plaintiffs' FAC as a whole, arguing the
allegations are insufficient under wage and hour pleading
standards. Notice of Mot. at 1. In the alternative,
Defendants move to strike (1) allegations regarding
reimbursement for drug tests, (2) allegations that Defendants
did not pay the correct premiums for missed meal and rest
breaks, and (3) requests for injunctive relief. Id.
Request for Judicial Notice
ask the Court to take judicial notice of the following
1. The Division of Labor Standards Enforcement Enforcement
Policies and Interpretations Manual (“DLSE
2. DLSE opinion letter entitled: “Whether there is a
Private Right of Action to Enforce Amounts Owed Under the
Meal Period Provisions of the IWC Orders Under Labor Code
3. Assembly Bill No. 2509 as introduced on February 24, 2000;
4. Assembly Bill No. 2509 as amended on August 25, 2000; and
5. The United States Department of Labor's Fair Labor
Standards Act (“FLSA”) Hours Worked Advisor,
Employers' Screen 13, entitled: “Physical Exams,
Fingerprinting and Drug Testing.” Pls.' Req. for
Judicial Notice (“RJN”) at 1, ECF No. 11.
argue the Court should not take judicial notice of numbers 1
and 5. Defs.' Obj. to RJN at 1-2, ECF No. 13.
number 1, the DLSE Manual, Defendants argue it is a
“void regulation subject to no deference.”
Id. at 1. Other district courts have taken judicial
notice of the DLSE Manual. See e.g. Mitchell v.
Medtronic, Inc., No. CV 13-6624-MWF(PLAX), 2015 WL
12747824, at *2 (C.D. Cal. Feb. 13, 2015), aff'd, No.
15-55888, 2017 WL 1056096 (9th Cir. Mar. 21, 2017). The Court
recognizes, however, that the DLSE Manual is not binding
authority. See Klune v. Ashley Furniture Indus.,
Inc., No. CV 14-3986 PA FFMX, 2015 WL 1540906, at *3 n.1
(C.D. Cal. Apr. 3, 2015). The Court therefore follows
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