United States District Court, N.D. California
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS
DOCKET NO. 22
M. CHEN UNITED STATES DISTRICT JUDGE
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. 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.
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
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
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.
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.
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.
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.
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.
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
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.
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.
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 ...