Benge v. Office Depot, LLC

— 1 — — 2 — — 3 — — 4 — — 5 — — 6 — — 7 — 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA — 10 — CHRISTOPHER BENGE, individually, No. 2:24-cv-00749-DJC-DB — 11 — and on behalf of other members of 12 the general public similarly situated, 13 Plaintiff, ORDER GRANTING MOTION TO DISMISS WITH LEAVE TO AMEND 14 v. — 15 — OFFICE DEPOT, LLC, a Delaware 16 limited liability company; OFFICE DEPOT, INC., a Delaware corporation; 17 THE ODP CORPORATION, a Delaware corporation; and DOES 1 through — 18 — 100, inclusive, — 19 — Defendants. — 20 — — 21 — 22 Plaintiff Christopher Benge brings his Class Action Complaint against 23 Defendants Office Depot, LLC, Office Depot, Inc., and The ODP Corporation, along 24 with 100 Doe Defendants, alleging that Defendants violated various California Labor 25 Code provisions and California’s Unfair Competition Law as a result. Defendants 26 again seek dismissal, arguing that Plaintiff has failed to state a claim. For the reasons 27 set forth below, the Court GRANTS Defendants’ Motion to Dismiss (ECF No. 17), but 28 Plaintiff is GRANTED leave to amend one more time. 1 BACKGROUND 2 I. Factual Background 3 Plaintiff is a California resident who worked for Defendants. (See Second Am. 4 Class Action Compl. for Damages (ECF No. 16) ¶¶ 5, 20 (“Second Amended 5 Complaint” or “SAC”).) Plaintiff was an hourly-paid, non-exempt Sales Advisor. (See 6 id. ¶ 20.) Defendants are retailers who are in the business of operating and providing 7 products and services through their retail stores and online platforms to sell office 8 related supplies and services. (See id. ¶ 22.) Plaintiff generally alleges that 9 Defendants violated California’s Labor Code and some Wage Orders of the Industrial 10 Welfare Commission by: (1) failing to pay overtime (see id. ¶¶ 51–59); (2) failing to 11 provide meal breaks (see id. ¶¶ 60–73); (3) failing to provide rest breaks (see id. 12 ¶¶ 74–85); (4) failing to pay the minimum wage (see id. ¶¶ 74–90); (5) failing to pay all 13 unpaid wages upon discharge (see id. ¶¶ 91–98); and (6) failing to provide accurate 14 wage statements (see id. ¶¶ 99–105). Finally, Plaintiff alleges that Defendants violated 15 California’s UCL because of the predicate Labor Code violations. (See id. ¶ 109.) 16 II. Procedural Background 17 Plaintiff first filed his Class Action Complaint in Placer County Superior Court. 18 (See ECF No. 1.) Defendants then removed the case to federal court. (See id.) 19 Following removal, Defendants filed their first motion to dismiss. (See ECF No. 20 8.) The parties briefed the motion to dismiss, but the Court subsequently vacated the 21 hearing set for the motion and denied Defendants’ motion without prejudice for 22 failing to comply with this Court’s Standing Order in Civil Cases, which requires the 23 parties to meet-and-confer before noticing any motion for argument. (See ECF No. 24 11.) After issuing this minute order, Plaintiff filed his First Amended Complaint (ECF 25 No. 12), which was replaced by the operative Second Amended Complaint (Second 26 Am. Compl. (ECF No. 16) (“SAC”)) following a joint stipulation (see ECF Nos. 13–14). 27 After agreeing to allow Plaintiff to amend his complaint, Defendants brought 28 the instant Motion. (See ECF No. 17; also Mem. of P. and A. in Supp. of Defs.’ Mot. to 1 Dismiss Pl.’s SAC (ECF No. 17-1) (“Motion” or “Mot.”).) Plaintiff timely filed his 2 Opposition, and Defendants filed their Reply. (See Pl.’s Opp’n to Defs.’ Mot. (ECF No. 3 19) (“Opposition” or “Opp’n”); Defs.’ Reply in Supp. of Defs.’ Mot. (ECF No. 20) 4 (“Reply”).) The Court heard oral argument on the matter where Attorney Desiree 5 Alfaro appeared for Plaintiff, and Attorney Samuel Saman Sadeghi appeared for 6 Defendants. The matter is now fully briefed. 7 DISCUSSION 8 III. Legal Standard 9 A party may move to dismiss for “failure to state a claim upon which relief can 10 be granted[.]” Fed. R. Civ. P. 12(b)(6). The motion may be granted if the complaint 11 lacks a “cognizable legal theory” or if its factual allegations do not support a 12 cognizable legal theory. Godecke v. Kinetic Concepts, Inc., 937 F.3d 1201, 1208 (9th 13 Cir. 2019) (quoting Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988)). 14 The court assumes all factual allegations are true and construes “them in the light 15 most favorable to the nonmoving party.” Steinle v. City & Cnty. of San Francisco, 919 16 F.3d 1154, 1160 (9th Cir. 2019) (quoting Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 17 1480, 1484 (9th Cir. 1995). If the complaint’s allegations do not “plausibly give rise to 18 an entitlement to relief[,]” the motion must be granted. Ashcroft v. Iqbal, 556 U.S. 662 , 19 679 (2009) (“Iqbal”). 20 A complaint need contain only a “short and plain statement of the claim 21 showing that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), not “detailed 22 factual allegations,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (“Twombly”). 23 But this rule demands more than unadorned accusations; “sufficient factual matter” 24 must make the claim at least plausible. Iqbal, 556 U.S. at 678 . In the same vein, 25 conclusory or formulaic recitations of elements do not alone suffice. See id. This 26 evaluation of plausibility is a context-specific task drawing on “judicial experience and 27 common sense.” Id. at 679 . 28 //// 1 IV. Analysis 2 A. The Meal Break, Rest Break, Minimum Wage, and OvertimeWage Claims Fail to Adequately Plead a Labor Code Violation — 3 — 4 1. Legal Standard 5 In a seminal case dealing with minimum and overtime wage claims under the 6 Fair Labor Standard Act (“FLSA”), codified in relevant part at 29 U.S.C. §§ 206 (a)(1) 7 and 207(a)(1), the Ninth Circuit “review[ed] [the plaintiff’s] complaint to determine 8 whether the allegations plausibly state[d] a claim that [the defendant] failed to pay 9 minimum wages and overtime wages, keeping in mind that detailed facts are not 10 required.” Landers v. Quality Commc’ns, Inc., 771 F.3d 638, 641 (9th Cir. 2014) (citing 11 Twombly, 550 U.S. at 555 ), as amended (Jan. 26, 2015). For a claim alleging a failure 12 to pay overtime under the FLSA, the Ninth Circuit held that “to survive a motion to 13 dismiss, a plaintiff . . . must allege that she worked more than forty hours in a given 14 workweek without being compensated for the overtime hours worked during that 15 workweek.” Id. at 644–45 (collecting cases). While recognizing that plausibility is still 16 a context-specific inquiry, the Ninth Circuit explained that a “plaintiff may establish a 17 plausible claim by estimating the length of her average workweek during the 18 applicable period and the average rate at which she was paid, the amount of overtime 19 wages she believes she is owed, or any other facts that will permit the court to find 20 plausibility.” Id. at 645 (citing Pruell v. Caritas Christi, 678 F.3d 10, 14 (1st Cir. 2012)). 21 The Ninth Circuit further explained that “at a minimum, a plaintiff asserting a violation 22 of the FLSA overtime provisions must allege that she worked more than forty hours in 23 a given workweek without being compensated for the hours worked in excess of forty 24 during that week.” Id. (collecting cases). However, the Ninth Circuit “decline[d] to 25 make the approximation of overtime hours the sine qua non of plausibility for claims 26 brought under the FLSA[ ]” because “most (if not all) of the detailed information 27 concerning a plaintiff-employee’s compensation and schedule is in the control of the 28 defendants.” Id. (citing Pruell, 678 F.3d at 15 ). 1 In a recent unpublished memorandum opinion from the Ninth Circuit, it 2 affirmed a district court’s dismissal of claims for unpaid overtime, unpaid minimum 3 wages, and rest break violations under the California Labor Code in light of Landers. 4 See Boyack v. Regis Corp., 812 F. App’x 428 , 430 (9th Cir. 2020) (mem.) (non5 precedential). The Ninth Circuit agreed that the complaint failed to state a claim 6 under Landers for overtime and minimum wage claims, rest break violation claims, 7 and claims related to failing to pay wages upon discharge. See id. at 430–31. 8 Subsequently, California district courts, including in the Eastern District, have taken 9 the Ninth Circuit’s cues and dismissed claims under Landers for violations of 10 California’s Labor Code related to meal and rest break claims, see, e.g., Perez v. DNC 11 Parks & Resorts at Sequoia, No. 1:19-CV-00484-DAD-SAB, 2020 WL 4344911 , at *6 12 (E.D. Cal. July 29, 2020) (citing Landers, 771 F.3d at 646 ; Boyack, 812 F. App’x at 431), 13 and overtime and minimum wage claims, see, e.g., Turner v. LTF Club Mgmt. Co., LLC, 14 No. 2:20-cv-00046-KJM-JDP, 2022 WL 1018498 , at *5–6 (E.D. Cal. Apr. 5, 2022). 15 2. Analysis 16 Defendants argue that Plaintiff’s first four causes of action are deficient in light 17 of Landers. (See Mot. at 7–14.) The Court agrees. 18 a. The Unpaid Overtime and Minimum Wage Claims 19 As for the first and fourth causes of action, which bring a claim for unpaid 20 overtime and unpaid minimum wages, respectively, Plaintiff argues that he states a 21 Labor Code violation, noting that the Second Amended Complaint “alleges an 22 example of a pay period where Plaintiff was not compensated overtime wages for all 23 hours worked.” (Opp’n at 5 (citing SAC ¶ 57).) The fourth cause of action does not 24 include a similar allegation. (See SAC ¶¶ 86–90.) 25 Nevertheless, the single additional allegation that includes a specific time 26 period is not enough to state a claim under the first cause of action because Landers 27 “require[s] plaintiffs to draw on their memory and personal experience to develop 28 factual allegations with sufficient specificity that they plausibly suggest that [the] 1 defendant failed to comply with its statutory obligations under the FLSA.” Landers, — 2 — 771 F.3d at 643 (discussing Dejesus v. HF Mgmt. Servs., LLC, 726 F.3d 85, 89 (2d Cir. 3 2013), which was relying on Lundy v. Catholic Health System of Long Island Inc., 711 4 F.3d 106 (2d Cir. 2013)). As in Turner, Plaintiff fails to “provide any meaningful detail 5 to give a sense of when the alleged violations happened or how often they 6 happened . . . .” Turner, 2022 WL 1018498 , at *6. Instead, Plaintiff only alleges in his 7 single representative allegation that he “was not compensated at an overtime rate for 8 all time worked in excess of eight (8) hours per day, including work performed off-the9 clock.” (SAC ¶ 57.) 10 As a result, the Court GRANTS Defendants’ Motion to Dismiss the first and 11 fourth causes of action. (See Mot. at 7–10, 12–14.) Accordingly, the Court DISMISSES 12 WITHOUT PREJUDICE Plaintiff’s first and fourth causes of action. 13 b. The Meal and Rest Break Claims 14 Similarly, Plaintiff argues that the second and third causes of action, which bring 15 meal and rest break claims, respectively, state Labor Code violations because Plaintiff 16 alleges that there were daily violations and provides representative allegations for two 17 weeks. (See Opp’n at 6 (citing SAC ¶¶ 31, 33, 67, 79).) However, as before, Plaintiff 18 fails to “allege facts specifically identifying an instance where they were deprived of a 19 meal or rest break.” Perez, 2022 WL 411422 , at *4 (citing Landers and Boyack). 20 For the second cause of action’s meal break claim, Plaintiff vaguely alleges that 21 “meal periods were either missed, shortened, taken late, and/or were interrupted.” 22 (SAC ¶ 67.) Similarly, for the third cause of action, Plaintiff only alleges that, for one 23 week, he “worked more than six hours and did not receive two full uninterrupted paid, 24 off-duty rest periods.” (SAC ¶ 79.) Plaintiff alleges that this was because he had to 25 “perform work duties including but not limited to, providing customer service such as 26 answering questions and assisting customers and responding to business-related 27 questions and instructions from supervisors.” (Id.; see also id. ¶ 79 (same).) However, 28 Plaintiff fails to state the approximate frequency of missed rest breaks because of 1 customer service concerns and why these work duty tasks necessarily interfered with 2 taking timely meal breaks in support of his allegation that there were violations on a 3 “daily basis.” (SAC ¶¶ 31, 33, 79.) Compare with Perez, 2022 WL 411422 , at *5 4 (collecting cases). Again, the representative allegations in the Second Amended 5 Complaint appear to be weeks selected at random. (See SAC ¶¶ 67, 79.) Such 6 allegations do not “raise a claim of entitlement to relief,” so “‘this basic deficiency 7 should . . . be exposed at the point of minimum expenditure of time and money by the 8 parties and the court.’” Twombly, 550 U.S. at 558 (citations omitted). 9 Therefore, the Court GRANTS Defendants’ Motion to Dismiss the second and 10 third causes of action. (See Mot. at 10–12.) The Court thus DISMISSES WITHOUT 11 PREJUDICE Plaintiff’s second and third causes of action. 12 B. The Fifth and Sixth Causes of Action Also Fail to State a Claim Because They Depend on the First Four Causes of Action — 13 — 14 Plaintiff’s only argument for the fifth cause of action was that “Plaintiff’s SAC 15 adequately alleges that Defendants failed to pay Plaintiff and the other class members 16 for all hours worked at the applicable minimum, base, or overtime rate and for all 17 meal and rest periods owed.” (Opp’n at 7.) However, the fifth cause of action for 18 violations of California Labor Code sections 201, 202, and 203 depend on Plaintiff’s 19 allegation that he “was not paid at the time of separation all wages earned and unpaid 20 throughout his employment, including but not limited to, minimum wages and 21 overtime wages for time worked off-the-clock and meal and rest period premium 22 payments for short, late, interrupted, and/or missed meal and rest periods.” (SAC 23 ¶ 95.) Because the Court concluded that Plaintiff failed to allege a plausible Labor 24 Code violation, the fifth cause of action fails too. See Turner, 2022 WL 1018498 , at *6. 25 Similarly, Plaintiff’s sixth cause of action depends on the wage statements being 26 inaccurate because Defendants “provided wage statements that did not reflect the 27 time worked off-the-clock or all meal and rest period premiums earned.” (SAC ¶ 101.) — 28 — 1 But the Court concluded that Plaintiff did not allege a Labor Code violation, so Plaintiff 2 cannot allege an inaccurate wage statement claim. See Perez, 2022 WL 411422 , at *8. 3 As a result, the Court GRANTS Defendants’ Motion to Dismiss the fifth and sixth 4 causes of action. (See Mot. at 14–16.) Accordingly, the Court DISMISSES WITHOUT 5 PREJUDICE the fifth and sixth causes of action. 6 C. The Seventh Cause of Action Fails to State a Claim Under the UCL 7 Plaintiff’s seventh cause of action under the UCL “is predicated on Defendants’ 8 violations of multiple state laws, including Labor Code sections 203, 226, and 1174[.]” 9 (Opp’n at 9.) Because the Court concluded that Plaintiff did not plausibly allege a 10 predicate violation, the UCL claim necessarily fails. See Turner, 2022 WL 1018498 , at 11 *7. 12 Defendants also requested dismissal without leave to amend with respect to 13 certain theories Plaintiff brings under the UCL. (See Mot. at 16–17; Reply at 10–11.) 14 The Court agrees because “[p]revailing plaintiffs are generally limited to injunctive 15 relief and restitution.” Cel-Tech Commc’ns, Inc. v. Los Angeles Cellular Tel. Co., 20 16 Cal. 4th 163 , 179 (1999). 17 As a result, the section 203 claim must be dismissed without leave to amend 18 under the UCL because it “would not ‘restore the status quo by returning to the 19 plaintiff funds in which he or she has an ownership interest.” Pineda v. Bank of Am., 20 N.A., 50 Cal. 4th 1389, 1401 (2010) (quoting Korea Supply Co. v. Lockheed Martin 21 Corp., 29 Cal. 4th 1134, 1149 (2003)). “Section 203 is not designed to compensate 22 employees for work performed[ ]” but is instead “intended to encourage employers to 23 pay final wages on time, and to punish employers who fail to do so.” Id. So too with 24 penalties and damages under California Labor Code section 226, which are not 25 restitutionary in nature. See, e.g., Meraz-Valencia v. Westlake Royal Roofing, LLC, No. 26 2:22-CV-00491-DAD-AC, 2023 WL 2541852 , at *7 (E.D. Cal. Mar. 16, 2023) (collecting 27 cases); Gomez v. J. Jacobo Farm Labor Contractor, Inc., 334 F.R.D. 234 , 267 (E.D. Cal. 28 2019) (same). And California courts have similarly dismissed UCL claims predicated 1 on violations of California Labor Code section 1174(d), which only provides for civil 2 penalties. See, e.g., Byrd v. Masonite Corp., 215 F. Supp. 3d 859 , 864–65 (C.D. Cal. 3 2016) (collecting cases). Accord Dockery v. Citizens Telecom Servs. Co., LLC, No. 4 2:21-CV-00416-TLN-CKD, 2023 WL 2752482 , at *5 (E.D. Cal. Mar. 31, 2023). 5 D. Plaintiff Is Granted Leave to Amend One Last Time 6 1. Legal Standard 7 Requests for leave to amend should be granted with “extreme liberality.” 8 Brown v. Stored Value Cards, Inc., 953 F.3d 567, 574 (9th Cir. 2020) (quoting Moss v. 9 U.S. Secret Serv., 572 F.3d 962, 972 (9th Cir. 2009) (citation omitted)). When 10 considering whether to grant leave to amend, a district court should consider several 11 factors including undue delay, the movant’s bad faith or dilatory motive, repeated 12 failure to cure deficiencies by amendments previously allowed, undue prejudice to 13 the opposing party, and futility. Id. (citing Foman v. Davis, 371 U.S. 178, 182 (1962)). 14 Of the Foman factors, prejudice to the opposing party carries the most weight. Id. 15 (citing Eminence Cap., LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003)). 16 Absent prejudice, or a strong showing of any of the remaining Foman factors, there 17 exists a presumption under Rule 15(a) in favor of granting leave to amend. Eminence 18 Capital, LLC, 316 F.3d at 1052 (citing Lowrey v. Texas A & M Univ. Sys., 117 F.3d 242 , 19 245 (5th Cir. 1997)). 20 However, when the district court has already afforded a plaintiff an opportunity 21 to amend the complaint, it has “wide discretion in granting or refusing leave to amend 22 after the first amendment, and only upon gross abuse will [its] rulings be disturbed.” 23 Rich v. Shrader, 823 F.3d 1205, 1209 (9th Cir. 2016) (first quoting Heay v. Phillips, 201 24 F.2d 220, 222 (9th Cir. 1952) (alteration included); and then quoting Allen v. City of 25 Beverly Hills, 911 F.2d 367, 373 (9th Cir. 1990)). “The district court’s discretion to deny 26 leave to amend is particularly broad where plaintiff has previously amended the 27 complaint.” Allen, 911 F.2d at 373 (quoting Ascon Properties, Inc. v. Mobil Oil Co., — 28 — 866 F.2d 1149, 1160 (9th Cir. 1989)). In particular, a district court has been affirmed 1 for denying leave to amend after only two opportunities to amend as “’only upon 2 gross abuse will [its] rulings be disturbed.’” Rich, 823 F.3d at 1209 ; see also id. (“Rich 3 has already been afforded two opportunities to amend and is unable to show that the 4 district court’s order constitutes ‘gross abuse.’” (quoting Heay, 201 F.2d at 222)). 5 2. Analysis 6 Here, except for Plaintiff’s theory of restitution and recovery under the UCL 7 based on California Labor Code sections 203, 226, and 1174(d), the Court cannot 8 conclude that Plaintiff’s causes of action “could not possibly be cured by the allegation 9 of other facts.” Watison v. Carter, 668 F.3d 1108, 1117 (9th Cir. 2012). However, the 10 Court warns Plaintiff that further amendment will not be granted without good cause 11 after this Third Amended Complaint in light of the repeated failure to cure the 12 previous deficiencies. See Foman, 371 U.S. at 182 . 13 In particular, the parties have met-and-conferred regarding Plaintiff’s 14 allegations on at least two occasions and through two separate motions to dismiss. 15 Yet, the allegations have not substantially changed. The only substantive changes are: 16 • Allegations including where Plaintiff worked for Defendants and how 17 much he was paid (compare ECF No. 1-1 ¶ 20 with FAC ¶ 20; SAC ¶ 20); 18 • Allegations that Defendants inaccurately reported Plaintiff’s hours 19 worked “as approximately 45–73 hours per pay period[ ]” (compare ECF 20 No. 1-1 ¶¶ 22–24; FAC ¶¶ 22–24 with SAC ¶¶ 22–26); 21 • Allegations that some of these violations “occurred on a daily basis[ ]” or 22 ”every time Plaintiff was entitled to receive a wage statement, from April 23 2022 to April 2023[ ]” (compare ECF No. 1-1 ¶¶ 31–33, 35, ; FAC ¶¶ 30, 24 32, 34, 37 with SAC ¶¶ 31, 33, 35, 38); and 25 • Removing two causes of action from the Second Amended Complaint 26 that were in the original Complaint and the First Amended Complaint. 27 Thus, despite multiple attempts to bring attention to the deficient allegations, Plaintiff 28 has nevertheless declined to substantively change his allegations. 1 CONCLUSION 2 For the reasons set forth above, the Court GRANTS Defendants’ Motion to 3 | Dismiss (ECF No. 17). Plaintiff is GRANTED leave to amend, except with respect to 4 | Plaintiff's theory of restitution and recovery under the UCL based on California Labor 5 | Code sections 203, 226, and 1174(d). Plaintiff has 21 days from the docketing of this 6 | Order to file his Third Amended Class Action Complaint for Damages. Defendants 7 | will have 21 days after the docketing of the Third Amended Complaint for Damages to 8 | file their next responsive pleading. — 9 — 10 IT 1S SO ORDERED. 11 | Dated: _August 12, 2024 “Dane J CoO □□□□ Hon. Daniel alabretta 12 UNITED STATES DISTRICT JUDGE — 13 — — 14 — — 15 — — 16 — — 17 — 18 | bJc3 - Benge.24ev749.MTD — 19 — — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — — 27 — — 28 — — 441 —