United States District Court, S.D. California
ORDER GRANTING IN PART MOTION TO DISMISS
Honorable Larry Alan Burns, Chief United States District
Trinity Amador-Stewart brought this putative class action
against Defendant Snooze HiC, LLC for unpaid overtime under
the Fair Labor Standards Act (FLSA) and California Labor
Code, seeking unpaid overtime, unpaid compensation for
interrupted and/or missed meal and rest periods, and failure
to pay minimum wage. She also seeks interest, penalties,
costs, and attorney's fees. She amended her complaint
once, so the amended complaint ("FAC") is the
moved to dismiss. (Docket no. 6.) Amador-Stewart filed an
opposition (Docket no.9), and Snooze filed a reply brief.
(Docket no. 11.) Then Amador-Stewart filed a second
opposition (Docket no. 12) and withdrew her earlier
opposition. The motion is now fully briefed and ready for
motion to dismiss tests the sufficiency of the complaint.
Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001).
"Factual allegations must be enough to raise a right to
relief above the speculative level . . . ." Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).
"[S]ome threshold of plausibility must be crossed at the
outset" before a case is permitted to proceed.
Id. at 558 (citation omitted). To meet the ordinary
pleading standard and avoid dismissal, a complaint must plead
"enough facts to state a claim to relief that is
plausible on its face." Id. at 570. The
well-pleaded facts must do more than permit the Court to
infer "the mere possibility of misconduct"; they
must show that the pleader is entitled to relief.
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). Where a
complaint pleads facts that are "merely consistent
with" the defendant's liability, it "stops
short of the line between possibility and plausibility."
Id. at 678 (quoting Twombly, 550 U.S. at
determining whether a complaint states a claim, the Court
accepts all allegations of material fact in the complaint as
true and construes them in the light most favorable to the
non-moving party. Cedars-Sinai Medical Center v. National
League of Postmasters of U.S., 497 F.3d 972, 975 (9th
Cir. 2007) (citation omitted). The Court does not weigh
evidence or make credibility determinations. Acosta v.
City of Costa Mesa, 718 F.3d 800, 828 (9th Cir. 2013).
At the same time, the Court is "not required to accept
as true conclusory allegations which are contradicted by
documents referred to in the complaint, " and does
"not. . . necessarily assume the truth of legal
conclusions merely because they are cast in the form of
factual allegations." Warren v. Fox Family
Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003)
(citations and quotation marks omitted).
class allegations are tested by a motion for class
certification, although "[s]ometimes the issues are
plain enough from the pleadings to determine whether the
interests of the absent parties are fairly encompassed within
the named plaintiff's claim." Gen. Tel. Co. of
Southwest v. Falcon, 457 U.S. 147, 160 (1982). Some
courts have struck class allegations where it is clear from
the pleadings that class claims cannot be maintained.
See, e.g., Sanders v. Apple Inc., 672 F.Supp.2d 978,
990 (N.D. Cal. 2009).
pleading standard for FLSA claims is set forth in Landers
v. Quality Communications Inc., 771 F.3d 638 (9th Cir.
2014), which also provides guidance for wage and hour claims
more generally. Under this standard, "detailed factual
allegations regarding the number of [hours or] overtime hours
worked are not required to state a plausible claim";
neither is an estimate of "how much uncompensated time
was [worked], how often, and at what rate." Id.
at 644. But she must plead facts sufficient to demonstrate
the plausibility, rather than the mere possibility, of her
minimum wage and overtime wages claims. Id. at 646.
One way to establish a plausible claim is by estimating the
length of her average workweek during the applicable period,
the average rate at which she was paid, and the amount of
wages she believes she is owed. Id. at 645. The same
pleading standards apply to state law claims. Haralson v.
United Airlines, Inc., 224 F.Supp. 3d 928, 940-942 (N.D.
Cal. 2016) (applying the Landers standard to
California minimum wage law, overtime wage and meal and rest
FLSA averages all hours worked in any work week to compute an
employer's minimum wage obligation. Douglas v. Xerox
Bus. Servs., LLC, 875 F.3d 884, 890 (9thCir.
2017). Therefore, "If an employee works less than 40
hours per week, there is no [FLSA] minimum wage violation if
the employee's number of hours worked divided by wages
received is above the FLSA's minimum wage
requirements." Perez v. Wells Fargo & Co.,
75 F.Supp. 3d 1184');">75 F.Supp. 3d 1184, 1192 (N.D. Cal. 2014).
was a server in one of Snooze's San Diego restaurants.
The FAC does not say which restaurant, when she was employed,
usual schedule, or whether her compensation included tips,
nor does it provide any other details of her employment.
points out that she has not had an opportunity for discovery.
She is not entitled to discovery until she has pled a claim,
however. See Iqbal, 556 U.S. at 686 (holding that
where a complaint failed to state a cognizable federal claim,
the plaintiff was "not entitled to discovery, cabined or
otherwise"). But even if she were, she knows or should
easily be able to find out basic facts about her employment.
To the extent the pleading standard may require her to allege
facts such as these, there is no need to wait until the
discovery phase before requiring her to plead them. Nor is it
appropriate to relax the pleading standard until discovery,
given that she already has (or has had) access to this
information. See Gavaldon v. StanChart Securities
Intl., 2019 WL 764031, slip op. at *2 (S.D. Cal., Feb.
20, 2019) (citing Ebeid ex rel. U.S. v. Lungwitz,
616 F.3d 993, 999 (9th Cir. 2010)) (holding that a relaxed
pleading standard is inappropriate where information needed
to plead a claim is or has been within the plaintiffs
cites Landers, 771 F.3d at 645 for the proposition
that most or all of the relevant information is likely to be
in a defendant's control. But Landers concerns
itself with "detailed information concerning a
plaintiff-employee's compensation and schedule, "
such as records that would allow her to estimate her average
workweek and the average rates of pay. Id. Ordinary
facts of employment such as her ordinary hourly pay rate are
the type of thing most workers know. Workers have access to
some information in the form of W-2's, their own bank
records, and the like. And if a plaintiff knows enough to
allege that her employer engaged in certain practices, she
would also ordinarily know whether those things ever happened
to her. For example, if she can allege in good faith that
workers were permitted, encouraged, or required to work
unpaid overtime (FAC, ¶¶ 5-6), she should also know
whether she herself ever performed unpaid overtime. She would
likely also know general facts such as her typical schedule,
the number of hours in a typical work period, how and when
she was permitted or required to work overtime without extra
pay, and what work she did during those times. See Avalos
v. Amazon.com LLC, 2018 WL 3917970, at *4(E.D. Cal.,
Aug. 14, 2018) (suggesting that plaintiff could and should
have alleged facts such as these in support of her conclusory
overtime allegations). See also Boon v. Canon Bus.
Solutions, Inc., 592 Fed.Appx. 631, 632 ("Boon
identified tasks for which he was not paid . . . .")
clear, there is no checklist of facts that must be pled in a
wage and hour action. See Landers, 771 F.3d at 645
(plausibility of a claim is "context-specific").
But facts such as these can help make a claim plausible
rather than merely conclusory. For example, numerous cases
have examined whether particular activities amount to
compensable work, and have come to different conclusions
based on the facts and law of the cases. Depending on what
other facts are pled, a plaintiffs assertion that she
performed "compensable" overtime work may not be