Wynn v. United Parcel Service, Inc.

[2] 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION [6] 7 BRITTANY WYNN, Case No. 23-cv-06044-BLF 8 Plaintiff, ORDER GRANTING IN PART AND 9 v. DENYING IN PART MOTION TO DISMISS WITH LEAVE TO AMEND 10 UNITED PARCEL SERVICE, INC., IN PART; GRANTING IN PART AND DENYING IN PART MOTION TO 11 Defendant. STRIKE CLASS ALLEGATIONS WITH LEAVE TO AMEND [12] [Re: ECF No. 25] [14] 15 Plaintiff Brittany Wynn brings three claims against Defendant United Parcel Service, Inc. 16 (“UPS”) related to her brief employment at UPS. ECF No. 22 (“FAC”). Defendant moves to both 17 dismiss and strike class allegations for each of Plaintiff’s claims. ECF No. 25 (“Mot.”); ECF No. 18 35 (“Reply”). Plaintiff opposes the motion. ECF No. 29 (“Opp.”). The Court held a hearing on 19 July 18, 2024. For the reasons described below and on the record, Defendant’s motion to dismiss 20 is GRANTED IN PART AND DENIED IN PART WITH LEAVE TO AMEND IN PART. 21 Defendant’s motion to strike class allegations is GRANTED IN PART AND DENIED IN PART 22 WITH LEAVE TO AMEND. 23 I. BACKGROUND 24 Plaintiff’s claims stem from her brief employment with UPS. Plaintiff alleges she “worked 25 for Defendants as an hourly, non-exempt employee at all times during the applicable statutory 26 period from approximately November 4, 2020, through approximately March 28, 2021.” FAC ¶ 27 17. According to additional documentation submitted by Plaintiff, she worked five days in 2019 1 ECF No. 31 (Plaintiff’s payroll records). 2 Plaintiff’s claims and proposed class bear a resemblance to another suit, Augustine, et al. v. 3 United Parcel Service, Inc., Los Angeles Superior Court Lead Case No. BC636468, consolidated 4 with Case No. BC705672 (“Augustine” or “the Augustine Action”). In Augustine, the plaintiffs 5 alleged failure to reimburse business expenses for a class of UPS nonexempt package car drivers. 6 Mot. at 16; ECF No. 25-1 (“Brown Decl.”) ¶¶ 3–11; ECF No. 26 (“RJN”), Exs. 1–4, and 5. The 7 Augustine parties agreed to settlement on October 30, 2023. RJN, Ex. 5 (“Augustine Settlement 8 Agreement”). On January 25, 2024, the Augustine court granted preliminary approval of a class 9 action and PAGA representative action settlement. RJN, Ex. 6 (“Augustine Order Granting 10 Preliminary Approval”). The preliminary approval order defined the settlement class as “all 11 California-based hourly, non-exempt package car delivery drivers, excluding drivers using 12 personal vehicles to deliver packages for UPS,” from at least May 22, 2014 to January 25, 2024. 13 Id. at 5. The settlement includes a class-wide release, which releases “all claims [during the class 14 periods] that were alleged, or reasonably could have been alleged, based on the facts stated in the 15 operative Complaint…. This includes but is not limited to … all claims for the alleged failure to 16 indemnify and/or reimburse employees for any business expenses ….” Brown Decl. ¶ 11; 17 Augustine Settlement Agreement ¶ 5.2. The parties do not appear to dispute that Plaintiff is not a 18 member of the Augustine class. See Opp. at 7; Reply at 6. 19 II. LEGAL STANDARD 20 A. Article III Standing 21 A party may challenge the court’s subject matter jurisdiction by bringing a motion to 22 dismiss under Federal Rule of Civil Procedure 12(b)(1). “A Rule 12(b)(1) jurisdictional attack 23 may be facial or factual.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). 24 In a facial attack, the movant asserts that the lack of subject matter jurisdiction is apparent from 25 the face of the complaint. Id. 26 “Standing is meant to ensure that the injury a plaintiff suffers defines the scope of the 27 controversy he or she is entitled to litigate.” Melendres v. Arpaio, 784 F.3d 1254, 1261 (9th Cir. 1 three elements.” Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016) (quoting Lujan v. Defs. of 2 Wildlife, 504 U.S. 555, 560 (1992)). “The plaintiff must have (1) suffered an injury in fact, (2) 3 that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be 4 redressed by a favorable judicial decision.” Id. “The plaintiff, as the party invoking federal 5 jurisdiction, bears the burden of establishing these elements.” Id. 6 B. Failure to State a Claim 7 “A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a 8 claim upon which relief can be granted ‘tests the legal sufficiency of a claim.’” Conservation 9 Force v. Salazar, 646 F.3d 1240 , 1241–42 (9th Cir. 2011) (quoting Navarro v. Block, 250 F.3d 10 729, 732 (9th Cir. 2001)). When determining whether a claim has been stated, the Court accepts 11 as true all well-pled factual allegations and construes them in the light most favorable to the 12 plaintiff. Reese v. BP Expl. (Alaska) Inc., 643 F.3d 681, 690 (9th Cir. 2011). However, the Court 13 need not “accept as true allegations that contradict matters properly subject to judicial notice” or 14 “allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable 15 inferences.” In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008) (citation omitted). 16 While a complaint need not contain detailed factual allegations, it “must contain sufficient factual 17 matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, [18] 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A 19 claim is facially plausible when it “allows the court to draw the reasonable inference that the 20 defendant is liable for the misconduct alleged.” Id. On a motion to dismiss, the Court's review is 21 limited to the face of the complaint and matters judicially noticeable. MGIC Indem. Corp. v. 22 Weisman, 803 F.2d 500, 504 (9th Cir. 1986); N. Star Int'l v. Ariz. Corp. Comm’n, 720 F.2d 578 , 23 581 (9th Cir. 1983). 24 C. Motion to Strike Class Allegations 25 Under Federal Rule of Civil Procedure 12(f), “[t]he court may strike from a pleading an 26 insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” “[T]he 27 function of a 12(f) motion to strike is to avoid the expenditure of time and money that must arise 1 A.H. Robins Co., 697 F.2d 880 , 885 (9th Cir. 1983). Although class allegations may be stricken at 2 the pleading stage, “motions to strike class allegations are generally disfavored because ‘a motion 3 for class certification is a more appropriate vehicle.’” Lyons v. Coxcom, Inc., 718 F.Supp.2d 1232 , 4 1235–36 (S.D. Cal. 2009) (quoting Thorpe v. Abbott Lab., Inc., 534 F.Supp.2d 1120, 1125 (N.D. 5 Cal. 2008 )). “Before a motion to strike is granted . . . the court must be convinced that any 6 questions of law are clear and not in dispute, and that under no set of circumstances could the 7 claim or defense succeed.” Erceg v. LendingClub Corp., 475 F.Supp.3d 1071 , 1075 (N.D. Cal. 8 2020). “Given their disfavored status, courts often require ‘a showing of prejudice by the moving 9 party’ before granting the requested relief.” Mag Instrument, Inc. v. JS Prod., Inc., 595 F.Supp.2d 10 1102, 1106 (C.D. Cal. 2008) (quoting Neilson v. Union Bank of Cal., N.A., 290 F.Supp.2d 1101 , 11 1152 (C.D. Cal. 2003)). “In determining whether to grant a motion to strike, a district court views 12 the pleadings in a light most favorable to the non-moving party.” Id. 13 III. DISCUSSION 14 Defendant moves both to dismiss and strike the class allegations for each of Plaintiff’s 15 three claims. Defendant also seeks judicial notice of several exhibits in support of its motion. The 16 Court addresses Defendant’s request for judicial notice, then each claim in turn. 17 A. Judicial Notice 18 Defendant requests the Court take judicial notice of fifteen exhibits. ECF No. 26. Plaintiff 19 objects to Defendant’s request as to Exhibits 7–11, which correspond to certain collective 20 bargaining agreements (“CBAs”), arguing that “Plaintiff has not seen the CBAs at issue before, 21 and the CBAs themselves were not in effect during Plaintiff’s employment.” ECF No. 30. 22 Plaintiff does not object to judicial notice of the other exhibits. 23 A court generally cannot consider materials outside the pleadings on a motion to dismiss 24 for failure to state a claim. See Fed. R. Civ. P. 12(b)(6). A court may, however, consider items of 25 which it can take judicial notice without converting the motion to dismiss into one for summary 26 judgment. Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 1994). A court may take judicial notice 27 of facts “not subject to reasonable dispute” because they are either “(1) generally known within 1 resort to sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201. A court 2 may additionally take judicial notice of “‘matters of public record’ without converting a Motion to 3 Dismiss into a motion for summary judgment.” Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th 4 Cir. 2001) (quoting MGIC Indem. Corp. v. Weisman, 803 F.2d 500, 504 (9th Cir. 1986)). Under 5 the incorporation by reference doctrine, courts may consider documents “whose contents are 6 alleged in a complaint and whose authenticity no party questions, but which are not physically 7 attached to the [plaintiff’s] pleading.” In re Silicon Graphics Inc. Sec. Litig., 183 F.3d 970 , 986 8 (9th Cir. 1999) (quoting Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994)) (alteration in 9 original). 10 Defendant does not dispute, and the Court agrees, that the CBAs are not at issue because 11 they were not in effect during Plaintiff’s employment. Thus, the Court DENIES Defendant’s 12 request for judicial notice as to Exhibits 7–11, and GRANTS Defendant’s request for judicial 13 notice as to Exhibits 1–6 and 12–15. The Court does not take notice of the truth of any of the facts 14 asserted in these documents. 15 B. Claim One: Sick Leave 16 Plaintiff’s first claim is for Failure to Pay Sick Time under California Labor Code §§ 246 17 et seq. Defendant moves to dismiss the claim, arguing that Plaintiff does not have standing 18 because she never asked to take a sick day, and that a CBA exemption precludes suit. Mot. at 11– 19 14. Plaintiff responds that “[her] allegations obviously lead to an inference that during her 20 employment, Plaintiff attempted to take a sick day which was denied.” Opp. at 2. Plaintiff also 21 submits payroll documents as Exhibit 1 to her opposition. Id. at 7; ECF No. 31. UPS replies that 22 the payroll documents show Plaintiff only worked ten days for UPS, and is thus not eligible to 23 bring a claim under § 246. Reply at 5–6. 24 California Labor Code § 246(a)(1) states in relevant part, “[a]n employee who, on or after 25 July 1, 2015, works in California for the same employer for 30 or more days within a year from 26 the commencement of employment is entitled to paid sick days as specified in this section.” The 27 First Amended Complaint alleges only a time period when Plaintiff was employed, not the number 1 such, Plaintiff has not alleged that she worked more than 30 days, and thus has not alleged that she 2 qualifies for sick pay under § 246. Thus, the Court GRANTS Defendant’s motion to dismiss 3 Claim One WITH LEAVE TO AMEND. Specifically, Plaintiff must allege she worked “30 or 4 more days within a year from the commencement of employment” to be eligible for sick pay under 5 § 246. Because the Court dismisses the claim on this ground, it need not address Defendant’s 6 other arguments and DENIES Defendant’s motion to strike class allegations for Claim One AS 7 MOOT. 8 C. Claim Two: Reimbursement 9 Plaintiff’s second claim is for Failure to Indemnify under California Labor Code § 2802. 10 Defendant argues that Plaintiff does not have standing to bring the claim because she “fails to 11 allege that she ever requested a reimbursement that was denied.” Mot. at 12. Defendant also 12 argues that Plaintiff is precluded from bringing the claim by the court-approved settlement in the 13 Augustine matter. Id. at 15–16. Plaintiff responds that she does not need to allege a specific 14 request, only that she was not compensated for a mandatory expenditure. Opp. at 3. As to claim 15 preclusion, Plaintiff responds, “To the extent the Augustine class overlaps with Plaintiff’s 16 proposed class period, the proper remedy is to treat Plaintiff’s class period as beginning from the 17 first date outside of the Augustine period, which is January 26, 2024.” Id. at 7. 18 The Court first examines Ms. Wynn’s claims, then the class allegations. “Under the plain 19 language of Labor Code § 2808 a plaintiff need only allege facts showing they were not 20 compensated for a mandatory expenditure.” Fenton v. McLane/Suneast, Inc, No. 5:16-cv-0116221 SVW-(SPx), 2016 WL 11746002 , at *4 (C.D. Cal. Aug. 22, 2016). 22 Here, Plaintiff alleges expenses including but not limited to steel toed boots, uniforms, 23 masks, personal cell phones, and vehicles for work related purposes. FAC ¶ 33, 37. As discussed 24 on the record, for most expenses, Plaintiff has not sufficiently alleged that she incurred any of 25 these expenses as a condition of her employment. For example, Plaintiff does not allege the 26 expenses incurred for a uniform or boots, circumstances that required use of GPS on her cell 27 phone, or that she was ever required to drive for her job (and has otherwise alleged only ordinary 1 was for cell phone to communicate with management. Id. ¶ 20 –21. Thus, for these reasons and 2 those described on the record, the Court DENIES Defendant’s motion to dismiss Claim Two for 3 reimbursement for a phone to communicate with management, and GRANTS Defendant’s motion 4 to dismiss Claim Two for all other alleged expenses WITH LEAVE TO AMEND. 5 Plaintiff’s class allegations are more complicated and problematic, particularly in light of 6 the Augustine settlement. The parties do not dispute that the Augustine settlement covers class 7 periods, beginning at least on May 22, 2014 and ending January 25, 2024. Mot. at 15; Opp. at 7. 8 Plaintiff seeks leave to “amend her complaint to exclude those class members of the Augustine 9 class, and narrow her proposed class period to begin on January 26, 2024 for the expense 10 reimbursement claim.” Opp. at 7. But at the hearing, Plaintiff’s counsel had few answers as to the 11 extent with which Augustine limits the class allegations. Furthermore, as discussed on the record, 12 Plaintiff’s proposed reimbursement class of “All persons employed by Defendants in California 13 who incurred business expenses during the Relevant Time Period” is far too broad. As such, for 14 these reasons and those described on the record, the Court GRANTS Defendant’s motion to strike 15 class allegations for Claim Two WITH LEAVE TO AMEND. 16 Finally, as discussed on the record, the Court directs counsel to conduct a thorough 17 investigation before amending pursuant to Federal Rule of Civil Procedure 11, both with respect to 18 Ms. Wynn’s individual claims and the class allegations. 19 D. Claim Three: UCL 20 Plaintiff’s third claim is for violation of California’s Unfair Competition Law (Bus. & 21 Prof. Code §§ 17200 et seq., “UCL”) predicated on Claim One and Claim Two. Defendant argues 22 that Plaintiff does not have standing to seek injunctive relief under the UCL. Plaintiff responds 23 that the UCL claim should survive because she seeks restitution for harms under Claims One and 24 Two. Opp. at 8. 25 Only current employees have standing to seek injunctive relief against their employer’s 26 employment practices. Ellis v. Costco Wholesale Corp., 657 F.3d 970, 988 (9th Cir. 2011). Since 27 Plaintiff is not currently employed by UPS, she has no claim for injunctive relief. Furthermore, 1 Thus, the Court finds that it does not have equitable jurisdiction to hear Plaintiff's UCL claim. 2 Sonner v. Premier Nutrition Corp., 971 F.3d 834, 844 (9th Cir. 2020); Guzman v. Polaris Indus. 3 Inc., 49 F.4th 1308 1314-15 (9th Cir. 2022), cert. denied sub nom. Polaris Indus. Inc. v. Albright, [4] 143 S. Ct. 2612 (2023). Accordingly, the Court GRANTS Defendant’s motion to dismiss Claim 5 Three WITHOUT LEAVE TO AMEND. Because the Court dismisses Claim Three, it DENIES 6 || Defendant’s motion to strike class allegations for Claim Three AS MOOT. 7 || IV. ORDER 8 For the foregoing reasons, IT IS HEREBY ORDERED that: 9 1. Defendant’s motion for judicial notice is DENIED as to Exhibits 7-11, which 10 correspond to collective bargaining agreements. Defendant’s motion is GRANTED as 11 to the other exhibits (1-6 and 12-15). 12 2. Defendant’s motion to dismiss Claim One is GRANTED WITH LEAVE TO AMEND. 13 Defendant’s motion to strike Plaintiff's class allegations for Claim One is DENIED AS 14 MOOT. 15 3. Defendant’s motion to dismiss Claim Two is GRANTED IN PART AND DENIED IN 16 PART WITH LEAVE TO AMEND. Defendant’s motion to strike Plaintiff's class 3 17 allegations for Claim Two is GRANTED WITH LEAVE TO AMEND. 18 4. Defendant’s motion to dismiss Claim Three is GRANTED WITHOUT LEAVE TO 19 AMEND. Defendant’s motion to strike Plaintiff's class allegations for Claim Three is 20 DENIED AS MOOT. 21 Any amended complaint shall be filed no later than 30 days from the entry of this order. 22 || Plaintiff may only amend consistent with this order. No additional claims or parties may be added 23 || without leave of the Court. [24] 25 || Dated: July 26, 2024 26 yiacaian BETH LABSON FREEMAN 27 United States District Judge