United States District Court, E.D. California
DAVID PEREZ, individually, and on behalf of others similarly situated, Plaintiff,
DNC PARKS & RESORTS AT ASILOMAR, INC., a California Corporation, et al., Defendants.
ORDER GRANTING DEFENDANTS' MOTION FOR JUDGMENT ON
THE PLEADINGS, DENYING PLAINTIFF'S MOTION FOR LEAVE TO
FILE THE PROPOSED FIRST AMENDED COMPLAINT, AND GRANTING
PLAINTIFF LEAVE TO AMEND (DOCS. NO. 17, 27)
matter is before the court on a motion for judgment on the
pleadings filed on behalf of defendants DNC Parks &
Resorts at Asilomar, Inc. (“Asilomar”), DNC Parks
& Resorts at Sequoia, Inc. (“Sequoia”), DNC
Parks & Resorts at Yosemite, Inc.
(“Yosemite”), Delaware North Companies, Inc.
(“DNCI”), DNC Parks & Resorts at Kings
Canyon, Inc. (“Kings Canyon”), DNC Parks &
Resorts at Tenaya Inc. (“Tenaya”), and Delaware
North Companies Parks & Resorts, Inc.
“defendants”) and plaintiff David Perez's
motion for leave to file a first amended complaint. (Doc.
Nos. 17, 27.) On September 17, 2019, those motions came
before the court for hearing. Attorneys Irina Kirnosova and
Mikael Stahle appeared telephonically on behalf of plaintiff.
Attorneys Jonathan L. Brophy and Lauren R. Leibovitch
appeared telephonically on behalf of defendants. Having
considered the parties' briefing and arguments,
defendants' motion for judgment on the pleadings is
granted and plaintiff's motion for leave to file the
proposed first amended complaint is denied. Plaintiff,
however, will be granted leave to amend.
action was originally filed on February 28, 2019, in Tulare
County Superior Court as a class action, alleging violations
of California's Labor Code and Unfair Competition Law
(“UCL”) and a Private Attorneys General Act
(“PAGA”) claim. (Doc. No. 1, Ex. A
(“Compl.”) at ¶¶ 18-65.) As alleged in
the complaint, plaintiff was a former employee of defendants.
(Compl. at ¶ 3.) According to plaintiff:
DEFENDANTS . . . acted pursuant to, and in furtherance of,
their policies and practices of not paying PLAINTIFF and
CLASS MEMBERS all wages earned and due, through methods and
schemes which include, but are not limited to, failing to pay
overtime premiums; failing to provide rest and meal periods;
failing to properly maintain records; failing to provide
accurate itemized statements for each pay period; failing to
properly compensate PLAINTIFF and CLASS MEMBERS for necessary
expenditures; and requiring, permitting, or suffering the
employees to work off the clock . . ..
(Id. at ¶ 3, 15.) The relevant time period
alleged by plaintiff is the four years prior to the filing of
this action, to continue while this action is pending.
(Id. at ¶ 4.)
answered plaintiff's complaint on April 10, 2019 (Doc.
No. 1-2) and removed the action to this federal court on
April 12, 2019 on the basis of federal question jurisdiction
and the Class Action Fairness Act (“CAFA”). (Doc.
No. 1.) On July 9, 2019, defendants filed the pending motion
for judgment on the pleadings and plaintiff subsequently
moved for leave to file a first amended complaint on August
19, 2019. (Docs. No. 17, 27.)
Motion for Judgment on the Pleadings Rule 12(c) of
the Federal Rules of Civil Procedure provides that
“[a]fter the pleadings are closed-but early enough not
to delay trial-a party may move for judgment on the
pleadings.” In reviewing a motion brought under Rule
12(c), the court “must accept all factual allegations
in the complaint as true and construe them in the light most
favorable to the nonmoving party.” Fleming v.
Pickard, 581 F.3d 922, 925 (9th Cir. 2009).
same legal standard applicable to a Rule 12(b)(6) motion
applies to a motion brought pursuant to Rule 12(c).
Dworkin v. Hustler Magazine, Inc., 867 F.2d 1188,
1192 (9th Cir. 1989). Accordingly, “judgment on the
pleadings is properly granted when, taking all the
allegations in the non-moving party's pleadings as true,
the moving party is entitled to judgment as a matter of
law.” Marshall Naify Revocable Tr. v. United
States, 672 F.3d 620, 623 (9th Cir. 2012) (quoting
Fajardo v. Cty. of Los Angeles, 179 F.3d 698, 699
(9th Cir. 1999)); see also Fleming, 581 F.3d at 925
(noting that “judgment on the pleadings is properly
granted when there is no issue of material fact in dispute,
and the moving party is entitled to judgment as a matter of
law”). The allegations of the nonmoving party must be
accepted as true, while any allegations made by the moving
party that have been denied or contradicted are assumed to be
false. MacDonald v. Grace Church Seattle, 457 F.3d
1079, 1081 (9th Cir. 2006). The facts are viewed in the light
most favorable to the non-moving party and all reasonable
inferences are drawn in favor of that party. Living
Designs, Inc. v. E.I. DuPont de Nemours & Co., 431
F.3d 353, 360 (9th Cir. 2005).
have discretion both to grant a motion for judgment on the
pleadings with leave to amend or to simply grant dismissal of
causes of action rather than grant judgment as to them.
Lonberg v. City of Riverside, 300 F.Supp.2d 942, 945
(C.D. Cal. 2004) (citations omitted); see also Pac. W.
Grp. v. Real Time Sols., Inc., 321 Fed. App'x 566,
569 (9th Cir. 2008); Woodson v. State of California,
No. 2:15-cv-01206-MCE-CKD, 2016 WL 524870, at *2 (E.D. Cal.
Feb. 10, 2016). Generally, dismissal without leave to amend
is proper only if it is clear that “the complaint could
not be saved by any amendment.” Intri-Plex Techs.
v. Crest Grp., 499 F.3d 1048, 1056 (9th Cir. 2007)
(citing In re Daou Sys., Inc., 411 F.3d 1006, 1013
(9th Cir. 2005)); see also Ascon Props., Inc. v. Mobil
Oil Co., 866 F.2d 1149, 1160 (9th Cir. 1989) (noting
that “[l]eave need not be granted where the amendment
of the complaint . . . constitutes an exercise in
Motion for Leave to Amend
Rule 15 of the Federal Rules of Civil Procedure, once an
answer has been filed, a party may amend a pleading only with
leave of court or after obtaining the written consent of the
adverse party. See Fed. R. Civ. P. 15(a). A court
should grant leave to amend freely when justice so requires.
Id. The Supreme Court has instructed lower courts to
heed carefully the command of Rule 15. See Foman v.
Davis, 371 U.S. 178, 182 (1962). “[R]ule 15's
policy of favoring amendments to pleadings should be applied
with extreme liberality.” DCD Programs Ltd. v.
Leighton, 833 F.2d 183, 186 (9th Cir. 1987) (citations
and internal quotations omitted); see also Price v.
Kramer, 200 F.3d 1237, 1250 (9th Cir. 2000). As the
Supreme Court has articulated:
In the absence of any apparent or declared reason-such as
undue delay, bad faith or dilatory motive on the part of the
movant, repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party by
virtue of allowing the amendment, futility of the amendment,
etc.-the leave sought should, as the rules require, be
Foman, 371 U.S. at 182; see also Bowles v.
Reade, 198 F.3d 752, 757-58 (9th Cir. 1999). “Not
all of the factors merit equal weight. As this circuit and
others have held, it is the consideration of prejudice to the
opposing party that carries the greatest weight.”
Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d
1048, 1052 (9th Cir. 2003); see also Sonoma Cty.
Ass'n of Retired Emps. v. Sonoma Cty., 708 F.3d
1109, 1117 (9th Cir. 2013). “Absent prejudice, or a
strong showing of any of the remaining Foman
factors, there exists a presumption under Rule 15(a) in favor
of granting leave to amend.” Eminence Capital,
LLC, 316 F.3d at 1052; see also Sonoma Cty.
Ass'n of Retired Emps., 708 F.3d at 1117.
Motion for Judgment on the Pleadings
move for judgment on the pleadings based primarily on the
federal enclave doctrine and for failure to state a claim.
The court will address each of defendants' arguments, and
plaintiff's responses, if any, below.
The Federal Enclave Doctrine
Yosemite, Sequoia, and Kings Canyon argue that the federal
enclave doctrine bars plaintiff from asserting against them
any causes of action based on state laws that came into force
after Yosemite, Sequoia, and Kings Canyon National Parks
became federal enclaves. (Doc. No. 17-1 at 13.)
federal enclave doctrine applies:
[W]hen the United States acquires with the
“consent” of the state legislature land within
the borders of that State. . . . [In such cases, ] the
jurisdiction of the Federal Government becomes
“exclusive.” The power of Congress over federal
enclaves that come within the scope of Art. I, § 8, cl.
17 . . . bars state regulation without specific congressional
action. This exclusive jurisdiction is “legislative,
” meaning the laws and statutes applied to these
locations must be supplied by the federal government, not the
states. When Congress legislates with respect to . . .
federal enclaves it acts as a state government with all the
powers of a state government, and thus Congress acts as a
state government with total legislative, executive and
Allison v. Boeing Laser Tech. Servs., 689 F.3d 1234,
1236-37 (10th Cir. 2012) (citations and internal quotations
“when an area in a State becomes a federal enclave . .
. the [state] law in effect at the time of the transfer of
jurisdiction continues in force. . . . Existing state law
typically does not continue in force, however, to the extent
it conflicts with ‘federal policy.' And going
forward, state law presumptively does not apply to the
enclave.” Parker Drilling Mgmt. Servs., Ltd. v.
Newton, __U.S.__, 139 S.Ct. 1881, 1890 (2019) (citations
and internal quotations omitted); see also Cooper v. S.
Cal. Edison Co., 170 Fed.Appx. 496, 497 (9th Cir. 2006),
as amended on denial of reh'g and reh'g en
banc (May 10, 2006) (“Only federal law applies on
a federal enclave, but preexisting state law not inconsistent
with federal policy becomes federal law and is applicable as
well.”) (citing Paul v. United States, 371
U.S. 245, 263-64 (1963)).
following statutes and orders form the basis of
plaintiff's complaint in this case: (1) California Labor
Code §§ 201-203, 510, 1174, 1194, 1197, 1198, and
2802, enacted in 1937, for the First, Third, Fourth, Fifth,
Seventh, and Eighth Causes of Actions; (2) California Labor
Code § 226, enacted in 1943, for the Sixth and Seventh
Causes of Actions; (3) California Labor Code § 512,
enacted in 1999, for the First and Second Causes of Actions;
(4) California Labor Code § 226.7, enacted in 2000, for
the First and Second Causes of Actions; (5) California Labor
Code §§ 2698-2699.5, enacted in 2003 and 2004, for
the Tenth Cause of Action; (6) California Business &
Professions Code § 17200 et seq., enacted in 1997, for
the Ninth Cause of Action; and (7) IWC Wage Order No. 5-2001,
issued in 1986, for the First, Second, Third, Fourth, Sixth,
and Seventh Causes of Action. (Compl. at ¶¶ 19-65.)
Plaintiff's Claims Against Defendants Yosemite and
Sequoia Are Barred by the Federal Enclave
Yosemite and Sequoia operate in the Yosemite and Sequoia
National Parks, which have been federal enclaves since June
2, 1920. 16 U.S.C. § 57 (“Sole and exclusive
jurisdiction is assumed by the United States over the
territory embraced and included within the Yosemite National
Park [and] Sequoia National Park”). As indicated above,
all of plaintiff's claims against defendants Yosemite and
Sequoia rely solely on state law passed after the
Yosemite and Sequoia National Parks became federal enclaves.
Thus, plaintiff's claims against defendants Yosemite and
Sequoia are presumptively barred. See Parker Drilling
Mgmt. Servs., 139 S.Ct. at 1890 (holding that state laws
passed after an area becomes a federal enclave
“presumptively [do] not apply”).
addition, plaintiff fails to respond in his opposition to
defendants' argument in this regard, effectively
conceding his claims against defendants Yosemite and
Sequoia. See Contreras v. Esper, No.
2:14-cv-01282-KJM-KJN, 2018 WL 1503678, at *3 (E.D. Cal. Mar.
27, 2018) (citing Carvalho v. Equifax Info. Servs.,
LLC, 629 F.3d 876, 888 (9th Cir. 2010) (“A
plaintiff who makes a claim . . . in his complaint, but fails
to raise the issue in response to a defendant's motion to
dismiss . . . has effectively abandoned his claim . . .
.”) and Moore v. Apple, Inc., 73
F.Supp.3d 1191, 1205 (N.D. Cal. 2014) (collecting cases and
finding that abandonment of a claim warrants dismissal
without leave to amend or with prejudice)).
plaintiff's claims against defendants Yosemite and
Sequoia will be dismissed with prejudice.
Plaintiff's Claims Against Defendant Kings Canyon Are
Barred in Part by the Federal Enclave Doctrine
Kings Canyon operates in Kings Canyon National Park
(“KCNP”), which both parties contend became a
federal enclave on August 4, 1943.
argue that plaintiff's First, Second, Third, Fourth,
Sixth, Seventh, Ninth, and Tenth Causes of Action are barred
by the federal enclave doctrine as to defendant Kings Canyon
because they are based on state laws that came into effect
after KCNP became a federal enclave. (Doc. No. 17-1 at 15.)
Plaintiff responds that California Labor Code §§
510, 1174, 1194, 1197, and 1198, the bases for his First,
Third, and Fourth Causes of Action, were enacted in 1937,
before KCNP was created. (Doc. No. 20 at 20.) However,
plaintiff fails to respond to defendants' arguments
regarding the IWC Wage Order and the Second, Ninth, and Tenth
Causes of Actions, effectively conceding the merit of
defendants' motion as to those causes of action.
Accordingly, plaintiff's Second, Ninth, and Tenth Causes
of Action are dismissed with prejudice as to defendant Kings
Canyon. To the extent claims against defendant Kings Canyon
are predicated on IWC Wage Order No. 5-2001, they are also
dismissed with prejudice.
also argues that California Labor Code § 226, partly
serving as the basis for his Sixth and Seventh Causes of
Action, remains in force at KCNP because it went into effect
on August 4, 1943, the same day the State of California
purportedly ceded jurisdiction over KCNP to the federal
government. (Doc. No. 20 at 19-20.) Defendants counter this
argument on the grounds that, “[a]lthough Section 226
was enacted on the same day that the federal enclave at Kings
Canyon was created, it was not already ‘in
existence' at the time the enclave was created” and
thus does not apply in KCNP. (Doc. No. 25 at 10.)
court concludes that both parties have missed the mark in
this regard. What both parties fail to recognize is that KCNP
did not became a federal enclave until June 1, 1945. KCNP was
proclaimed on March 4, 1940. See 16 U.S.C. § 80
(reserving and withdrawing an area of California land
“from settlement, occupancy, or disposal under the laws
of the United States [to] dedicate and set apart as a
public park, to be known as the Kings Canyon National
Park”). On August 4, 1943, California passed 1943 Cal.
Stat. 801, which provides that “[e]xclusive
jurisdiction shall be and the same is hereby ceded to the
United States over and within all of the territory . . . set
aside and dedicated for park purposes by the United States as
‘Kings Canyon National Park.'” However, that
statute specified that “[t]he jurisdiction granted by
this section shall not vest until the United States though
the proper office notifies the State of California that it
assumes police jurisdiction over said park.”
Id. That happened when the U.S. Secretary of
Interior, in a letter to the Governor of California, accepted
on behalf of the United States “exclusive jurisdiction
over all lands now included in Kings Canyon National
Park” and gave notice that the United States had
assumed “police jurisdiction over the said park,
” effective June 1, 1945. Police Jurisdiction Assumed
by U.S., 10 Fed. Reg. 6, 041 (Apr. 21, 1945). Thus, federal
administration of the park was concurrent with state
jurisdiction from March 4, 1940 until the United States
accepted exclusive jurisdiction on June 1, 1945.
federal law is clear that a federal enclave is created when
the United States assumes exclusive jurisdiction over land
within a State. See Allison, 689 F.3d at 1236-37.
“[S]tate law existing at the time of the
acquisition remains enforceable, not subsequent
laws.” Paul, 371 U.S. at 268 (emphasis added);
see also Carvajal v. Pride Indus., Inc., No. 10 CV
2319-GPC(MDD), 2013 WL 1728273, at *5 (S.D. Cal. Apr. 22,
2013) (“Under the federal enclave doctrine, state laws
have no effect on federal enclaves unless they preexisted
the surrender of sovereignty and are not inconsistent
with the laws of the United States or with the government use
for which the property was acquired.”) (emphasis
added); Mersnick v. USProtect Corp., No. C-06-03993
RMW, 2006 WL 3734396, at *6 (N.D. Cal. Dec. 18, 2006)
(“[S]tate laws existing at the time the United
States accepts jurisdiction remain enforceable unless