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Brum v. Marketsource, Inc.

United States District Court, E.D. California

June 16, 2017

JENNIFER BRUM and MICHAEL CAMERO, individually, and on behalf of other members of the general public similarly situated, Plaintiffs,
v.
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 STRIKE

          JOHN A. MENDEZ UNITED STATES DISTRICT JUDGE.

         Plaintiffs 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. 10.[1]

         I. FACTS

         Defendants 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.

         Plaintiffs 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 ¶ 29.

         Plaintiffs seek to represent one class and one subclass, but have not yet filed a motion for class certification. FAC ¶¶ 20, 21.

         Defendants 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. at 1-5.

         II. OPINION

         A. Request for Judicial Notice

         Plaintiffs ask the Court to take judicial notice of the following documents:

1. The Division of Labor Standards Enforcement Enforcement Policies and Interpretations Manual (“DLSE Manual”);
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 section 226.7;”
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.

         Defendants argue the Court should not take judicial notice of numbers 1 and 5. Defs.' Obj. to RJN at 1-2, ECF No. 13.

         As to 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 Burnham v. Ruan Transp., No. SACV 12-0688 AG ...


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