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Bravo v. On Delivery Services, LLC

United States District Court, N.D. California

May 25, 2018

ALFREDO BRAVO, Plaintiff,
v.
ON DELIVERY SERVICES, LLC, et al., Defendants.

          ORDER GRANTING DEFENDANT'S MOTION TO DISMISS DOCKET NO. 22

          EDWARD M. CHEN UNITED STATES DISTRICT JUDGE

         Plaintiff Alfredo Bravo has brought what is largely a wage-and-hour case against multiple defendants, namely, On Delivery Services, LLC; Jorge Alfaro; Frisco Bay Transport, Inc.; Dynamex; XPO Logistics Supply Chain, Inc.; Amazon.com Services, Inc.; and Mattress Firm, Inc.[1] Some of the defendants have not appeared in the case as of yet. Some defendants have appeared and answered. Currently pending before the Court is one defendant's - Amazon's -motion to dismiss and strike.

         The Court held a hearing on Amazon's motion to strike on May 24, 2018. This order memorializes the Court's rulings made at the hearing and provide additional analysis, as necessary.

         I. DISCUSSION

         1. With respect to all claims, Mr. Bravo alleges that all defendants, including Amazon, are joint employers. However, that allegation is completely conclusory. There are no factual allegations in the complaint regarding the nature of the alleged joint relationship - e.g., did Amazon hire one of the other defendants to make deliveries for it and did that defendant then hire Mr. Bravo as a driver's helper? Moreover, there are no factual allegations in the complaint that make the joint employment relationship plausible, see Ashcroft v. Iqbal, 556 U.S. 662 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) - e.g., did Amazon exert the requisite control over Mr. Bravo to be deemed an employer, let alone a joint employer? Because of these deficiencies, all claims pled in the complaint are properly dismissed. If Mr. Bravo amends (as the Court permits as provided below), he must allege specific facts establishing a plausible claim that Amazon was his joint employer.

         2. With respect to claim 1, failure to pay “straight” wages, it is predicated on two theories: (a) that Mr. Bravo was paid by shift, not by hour, such that “at time[s] [he] was paid less than minimum wage, ” Compl. ¶ 23, and (b) that he was not provided a meal break during which he was relieved of all duties and he was not paid for that time. See Compl. ¶¶ 30, 47. The Court addresses the second theory as part of claim 4 below.

         As for the first theory, it is subject to dismissal because it is lacking in specificity. See Landers v. Quality Communications, Inc., No. 12-15890, 2015 U.S. App. LEXIS 1290, at *19-20 (9th Cir. Jan. 26, 2015) (amending opinion at 771 F.3d 638 (9th Cir. 2014)). In Landers, for example, the plaintiff alleged an overtime violation based on the fact that the defendants used a de facto “piecework no overtime” system, meaning that employees were paid a certain amount per piece. The Ninth Circuit held that this allegation was insufficient to support an overtime claim; the complaint lacked detail regarding a given workweek when the plaintiff worked in excess of forty hours and was not paid overtime for that specific workweek or was not paid minimum wages. See Id. There is no principled reason to treat payment per piece (as in Landers) differently from payment per shift (as in the instant case), and Mr. Bravo does not allege, e.g., that, in a given workweek, he was not paid minimum wages because of how the shift system worked.

         3. Claim 2 for failure to pay overtime is likewise subject to dismissal under Landers. Notably, the Landers court endorsed the reasoning of a Third Circuit opinion, Davis v. Abington Memorial Hospital, 765 F.3d 236 (3d Cir. 2014). As explained in Landers, each plaintiff in Davis “alleged that"he or she typically worked shifts totaling between thirty-two and forty hours per week and further allege[d] that he or she frequently worked extra time.'” Landers, 2015 U.S. App.

         LEXIS 1290, at *14. The Third Circuit held that the allegations were not sufficient to state a plausible claim for relief because “none of the plaintiffs alleged that the extra hours were in fact worked during a typical forty-hour workweek.” Id. (emphasis added). While “a plaintiff need not identify precisely the dates and times she worked overtime, ” there must still be “[a]n allegation that a plaintiff typically worked a forty-hour workweek, and worked uncompensated hours during a particular forty-hour workweek.” Id. (emphasis added).

         As reflected by the above, Landers establishes that the invocation of a term such as “regularly, ” “typically, ” and “frequently” is not enough by itself to establish the plausibility of a claim. See, e.g., Perez v. Wells Fargo & Co., 75 F.Supp.3d 1184, 1191 (N.D. Cal. 2014) (Hamilton, J.) (stating that, “[u]nder Landers, allegations such as those asserted in the FAC - that certain plaintiffs"regularly' or"regularly and consistently' worked more than 40 hours per week - fall short of the Twombly/Iqbal standard and are thus insufficient to state a claim for denial of overtime compensation”); Tan v. Grubhub, Inc., 171 F.Supp.3d 998, 1007 (N.D. Cal. 2016) (Corley, J.) (stating that “Landers clarifies that mere conclusory allegations that class members" regularly' or" regularly and consistently' worked more than 40 hours per week - without any further detail - fall short of Twombly/Iqbal”). “Instead, a plaintiff must identify facts that give rise to a plausible inference that he was not paid minimum wage or overtime during at least one work week.” Id. at 1008.

         4. Claim 3, titled “liquidated damages, ” is derivative of the minimum wage and overtime wages. See Compl. ¶ 62. Accordingly, because claims 1 and 2 are subject to dismissal, claim 3 is also subject to dismissal.

         5. Claim 4 for failure to provide meal periods is dismissed because, as Amazon argues, Mr. Bravo has failed to specify how Amazon and/or Defendants failed to provide him with meal breaks in a manner that establishes liability under Brinker Restaurant Corp. v. Superior Court, 53 Cal.4th 1004 (2012). Mr. Bravo essentially parrots the elements of a meal break claim without providing any factual allegations in support.

         6. Claim 5, which asks for waiting time penalties, is another derivative claim (based on claims 1, 2, and 4). As the underlying claims are dismissed, claim 5 is also dismissed.

         The Court also notes that a claim for waiting time penalties requires a willful violation. See Amaral v. Cintas Corp. No. 2, 163 Cal.App.4th 1157, 1202 (2008) (discussing a prior case where there was evidence that the “employer was in fact aware that its employees were not being fully compensated for their time”) (emphasis omitted); Johnson v. Q.E.D. Envtl. Sys., No. 16-cv-01454-WHO, 2016 U.S. Dist. LEXIS 120900, at *12-13 (N.D. Cal. Sep. 7, 2016) (stating that plaintiff's “allegations of willful conduct are sufficiently pleaded because it is at least plausible that QED knew its employees were taking lunch periods of less than 30 minutes”); Johnson v. Sunrise Senior Living Mgmt., No. CV 16-00443-BRO (RAOx), 2016 U.S. Dist. LEXIS 189479, at *23 (C.D. Cal. May 5, 2016) (stating that ...


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