United States District Court, N.D. California, San Jose Division
ORDER GRANTING WITH LEAVE TO AMEND IN PART AND
WITHOUT LEAVE TO AMEND IN PART VACO'S MOTION TO DISMISS
OR STRIKE; GRANTING WITH LEAVE TO AMEND IN PART AND WITHOUT
LEAVE TO AMEND IN PART GOOGLE'S MOTION TO DISMISS OR
STRIKE[Re: ECF 70, 71]
LAB SON FREEMAN, UNITED STATES DISTRICT JUDGE.
the third round of motions to dismiss/strike class
allegations in this labor law class action. In the previous
two rounds, the Court strongly warned Plaintiff Christiana
Bush that her class allegations and definitions were so broad
as to be wholly implausible. Though Plaintiff's Third
Amended Complaint substantially narrows her class
definitions, the Court finds that they are still implausibly
broad and requires Plaintiff to narrow them for a final time
accordingly. The Court also finds that equitable tolling is
not appropriate for Plaintiff's individual claims or the
these conclusions, Defendant Vaco Technology Services,
LLC's (“VTS”) motion to dismiss or strike
(Vaco Mot., ECF 71) is GRANTED WITH LEAVE TO AMEND IN PART
AND WITHOUT LEAVE TO AMEND IN PART, and Defendant Google,
LLC's (“Google”) motion to dismiss or strike
(Google Mot., ECF 70) is GRANTED WITH LEAVE TO AMEND IN PART
AND WITHOUT LEAVE TO AMEND IN PART. Plaintiff's amended
complaint is due 21 days from the date of this
Court has had the opportunity to summarize the facts of this
case on multiple occasions and will refrain from doing so
again here. See ECF 60 (“SAC Order”);
ECF 44 (“FAC Order”). Most importantly, in her
Second Amended Complaint (“SAC”), Plaintiff
alleged that VTS staffed her at Google in Google's
Expedition Team as an Expedition Team Lead and that she was
the victim of several wage and hour violations by both
Defendants while in that position. Second Amended Complaint
(“SAC”) ¶¶ 26-29, ECF 47. She brought
labor law claims on behalf of herself and several putative
classes against VTS, Google, and several other Vaco entities.
order dismissing Plaintiff's First Amended Complaint
(“FAC”), the Court warned Plaintiff that her
class allegations were entirely too broad, given that her
factual allegations pertained only to her job on Google's
Expedition Team. See generally FAC Order. In her
SAC, Plaintiff included four defined classes, each of which
had numerous claim-specific sub-classes or location-based
sub-classes. Those classes were as follows: (1) “Google
Staffing Class: All persons employed by Google through any
staffing agencies who worked in hourly or non-exempt
positions in California during the Relevant Time
Period”; (2) “Google Expedition Class: All
persons employed directly by Google and/or through any
staffing agencies who worked in Google Expedition Team
positions in the United States during the Relevant Time
Period”; (3) “Vaco Class: All persons directly
employed by Vaco Entities who worked in hourly or non-exempt
positions in California during the Relevant Time
Period”; and (4) “UCL Class: All Google Staffing
Class, Google Expedition Class and Vaco Class members
employed by Defendants in California during the Relevant Time
Period.” SAC ¶ 17.
December 3, 2018, the Court dismissed Plaintiff's SAC
because her class allegations remained too broad. See
generally SAC Order. The Court first summarized
Bush's allegations as follows:
Bush alleges she was staffed by a specific staffing agency
(VTS) for a specific company (Google) in a specific job
(Expedition Team Leader) that required specific job duties.
And these job duties were not run-of-the-mill: Bush was
required to travel to various locations, transport phones,
train on and demonstrate the functionalities of the phones,
and ensure the phones were ready for the next set of
demonstrations (including charging the phones at home).
See SAC ¶¶ 30-35.
SAC Order at 4. The Court held that Plaintiff's
allegations were “overbroad at each and every step in
this narrowing chain.” Id.
the Court held that Plaintiff's allegations could not
support claims against any Vaco-entity Defendant except VTS,
who staffed Plaintiff at Google. Id. Second, the
Court held that “[t]he Vaco Class is overbroad because
it covers employees of Vaco Defendants staffed at
any company, ” but Plaintiff's allegations
were “tailored to her job duties” at Google.
Id. at 5. Likewise, Plaintiff had alleged that
Google and VTS were Plaintiff's joint employers,
indicating that there might be something unique about
employees staffed at Google. Id. at 5. Third, the
Court found that Plaintiff's Google staffing class was
too broad because it “encompasse[d] all persons
employed by Google in any hourly or non-exempt
positions, ” as opposed to just in Plaintiff's
specific job as Expedition Team Lead, which required her to
“perform discrete, unique job duties” that she
had “not allege[d] that other employees at Google or
who were staffed by Vaco Defendants experienced.”
Id. at 5-6. And the Court noted that the only
allegations connecting such a broad swath of people all spoke
to “alleged policies that ‘Defendants'
followed with respect to their employees.” Id.
at 6. Without more, these allegations could not hold together
the classes. Id.
detailing these deficiencies, the Court took stock of what
remained: “At most, on these allegations, Bush might be
able to proceed with a putative class of Expedition Team
Leads, either staffed by VTS or perhaps staffed directly by
Google, though even the latter would be a close call, given
that VTS and Google are alleged to have acted in tandem as to
Plaintiff.” Id. at 7. The Court concluded with
another strong admonition to Plaintiff: “The Court
means what it says this time: Failure to cure these
deficiencies will lead the Court to strike permanently
Bush's class allegations from her pleading.”
Id. at 7.
January 23, 2019, Plaintiff filed her Third Amended Complaint
(“TAC”). Third Am. Compl. (“TAC”),
ECF 65. In her TAC, Plaintiff brings claims against Google
and VTS only; she drops the other Vaco-entity Defendants. And
she alleges the following three classes, each of which has
sub-classes: (1) “Google Expedition Class: All persons
employed directly by Google and/or through any staffing
agencies, including but not limited to Vaco, who worked in
schools to promote Google Expeditions in the United States
during the Relevant Time Period”; (2) “Vaco
Class: All persons directly employed by Vaco who worked in
hourly or non-exempt positions in California during the
Relevant Time Period”; and (3) “UCL Class: All
Google Expedition Class and Vaco Class members employed by
Defendants in California during the Relevant Time
Period.” TAC ¶ 13. The Google Expedition Class has
a California sub-class. The Vaco Class has several
sub-classes: (1) the Vaco Google Class, defined as “All
persons employed by Vaco who worked in hourly or non-exempt
positions in California during the Relevant Time Period at
Google”; and (2) claim-specific subclasses based on the
broader Vaco Class (which are not limited to individuals
staffed at Google). Id.
addition to narrowing her class allegations, Plaintiff also
added factual allegations related to two jobs she held at
Google through VTS prior to working as an Expedition Team
Lead. Specifically, Plaintiff was hired by VTS and worked at
Google as an Order Audit Operation Specialist, a non-exempt
hourly position that mainly required data entry, and as a
Content Bug Technician, a non-exempt hourly position that
involved software quality assurance. Id.
¶¶ 22, 28, 35. While Plaintiff was in these two
previous roles, she alleges that both VTS and Google severely
understaffed the positions, pressured employees to remain at
their desks, did not have meal or rest break policies, and
failed to schedule meal or rest breaks. Id.
¶¶ 26-31. As a result of these actions by
Defendants, Plaintiff and the putative class could not take
uninterrupted meal or rest breaks, but they were not paid for
these missed breaks. Id. ¶¶ 32-33, 36-37,
50-51, 61, 67. She also alleges that while she worked in each
of her positions, Defendants rounded meal periods to the
nearest quarter hour. Id. ¶ 62.
TAC, Plaintiff brings the following eight causes of action,
on behalf of herself and various combinations of the classes
and sub-classes: (1) Failure to Provide Meal Periods (Lab.
§§ 204, 223, 226.7, 512, and 1198); (2) Failure to
Provide Rest Periods (Lab. Code §§ 204, 223, 226.7,
and 1198); (3) Failure to Pay Hourly Wages (Lab. Code
§§ 223, 510, 1194, 1194.2, 1197, 1997.1, and 1198);
(4) Failure to Indemnify (Lab. Code § 2802); (5) Failure
to Provide Accurate Written Wage Statements (Lab. Code §
226(a)); (6) Failure to Timely Pay All Final Wages (Lab. Code
§§ 201-203); (7) Unfair Competition (Bus. &
Prof. Code §§ 17200, et seq.); and (8) Failure to
Pay Employees for All Hours Worked (Fair Labor Standards Act
(“FLSA”), 29 U.S.C. § 201, et seq.).
and Vaco filed the instant motions to dismiss/strike on
February 19, 2019, and the Court held a hearing on the
motions on June 20, 2019.
Motion to Dismiss
motion to dismiss under Federal Rule of Civil Procedure
12(b)(6) for failure to state a claim upon which relief can
be granted ‘tests the legal sufficiency of a
claim.'” Conservation Force v. Salazar,
646 F.3d 1240, 1241-42 (9th Cir. 2011) (quoting Navarro
v. Block, 250 F.3d 729, 732 (9th Cir. 2001)). When
determining whether a claim has been stated, the Court
accepts as true all well-pled factual allegations and
construes them in the light most favorable to the plaintiff.
Reese, 643 F.3d at 690. However, the Court need not
“accept as true allegations that contradict matters
properly subject to judicial notice” or
“allegations that are merely conclusory, unwarranted
deductions of fact, or unreasonable inferences.” In
re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th
Cir. 2008) (internal quotation marks and citations omitted).
While a complaint need not contain detailed factual
allegations, it “must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is
facially plausible when it “allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. On a motion to
dismiss, the Court's review is limited to the face of the
complaint and matters judicially noticeable. MGIC Indem.
Corp. v. Weisman, 803 F.2d 500, 504 (9th Cir. 1986);
N. Star Int'l v. Ariz. Corp. Comm'n, 720
F.2d 578, 581 (9th Cir. 1983).
deciding whether to grant leave to amend, the Court must
consider the factors set forth by the Supreme Court in
Foman v. Davis, 371 U.S. 178 (1962), and discussed
at length by the Ninth Circuit in Eminence Capital, LLC
v. Aspeon, Inc., 316 F.3d 1048 (9th Cir. 2009). A
district court ordinarily must grant leave to amend unless
one or more of the Foman factors is present: (1)
undue delay, (2) bad faith or dilatory motive, (3) repeated
failure to cure deficiencies by amendment, (4) undue
prejudice to the opposing party, or (5) futility of
amendment. Eminence Capital, 316 F.3d at 1052.
“[I]t is the consideration of prejudice to the opposing
party that carries the greatest weight.” Id.
However, a strong showing with respect to one of the other
factors may warrant denial of leave to amend. Id.
Motion to Strike
Rule of Civil Procedure 12(f) permits a court to
“strike from a pleading an insufficient defense or any
redundant, immaterial, impertinent, or scandalous
matter.” The function of a motion made under this rule
is “to avoid the expenditure of time and money that
must arise from litigating spurious issues by dispensing with
those issues prior to trial.” Whittlestone, Inc. v.
Handi-Craft Co., 618 F.3d 970, 973 (9th Cir. 2010)
(quoting Fantasy, Inc. v. Fogerty, 984 F.2d 1524,
1527 (9th Cir.1993), rev'd on other grounds by
Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994)) (internal
quotation marks omitted). “While a Rule 12(f) motion
provides the means to excise improper materials from
pleadings, such motions are generally disfavored because the
motions may be used as delaying tactics and because of the
strong policy favoring resolution on the merits.”
Barnes v. AT & T Pension Ben. Plan-Nonbargained
Program, 718 F.Supp.2d 1167, 1170 (N.D. Cal. 2010).
decision to strike a portion of a party's pleading is
within the sound discretion of the court. Nurse v. United
States, 226 F.3d 996, 1000 (9th Cir. 2000). If a claim
or defense is stricken, leave to amend should be freely given
when doing so would not cause prejudice to the opposing