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Bush v. Vaco Technology Services, LLC

United States District Court, N.D. California, San Jose Division

July 22, 2019

CHRISTIANA BUSH, Plaintiff,
v.
VACO TECHNOLOGY SERVICES, LLC, et al., Defendants.

          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]

          BETH LAB SON FREEMAN, UNITED STATES DISTRICT JUDGE.

         This is 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 class claims.

         Given 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 Order.

         I. BACKGROUND

         The 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.

         In its 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.

         On 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.

         First, 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.

         After 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.

         On 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.

         In 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.

         In her 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. Code[1] §§ 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.).

         Google 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.

         II. LEGAL STANDARD

         A. Motion to Dismiss

         “A 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).

         In 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.

         B. Motion to Strike

         Federal 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).

         The 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 ...


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