Opinion
Case No. 2:19-cv-05050-ODW(KSx)
04-23-2020
LORENZO RIVERA, Plaintiff, v. MARRIOTT INTERNATIONAL, INC. et al. Defendants.
ORDER DENYING MOTION TO DISMISS FIRST AMENDED COMPLAINT OR IN THE ALTERNATIVE, STRIKE CLASS ALLEGATIONS [25]
I. INTRODUCTION
On April 24, 2019, Plaintiff Lorenzo Rivera ("Rivera") filed this putative class action in Los Angeles Superior Court against Marriot International, Inc. ("MII") and other Doe Defendants. (Notice of Removal ("Removal") Ex. A ("Compl."), ECF No. 1-1.) On June 10, 2019, MII removed the action pursuant to the Class Action Fairness Act, 28 U.S.C. § 1332(d) ("CAFA"). (Removal 1, ECF No. 1.) Rivera filed an amended Complaint on December 16, 2019. (First Am. Compl. for Damages ("FAC"), ECF No. 24.) MII now moves to dismiss or, in the alternative, strike Rivera's class allegations. (Mot. to Dismiss or Strike Class Allegations ("Mot."), ECF No. 25.) For the reasons that follow, the Court DENIES MII's Motion.
After carefully considering the papers filed in support of and in opposition to the Motion, the Court deemed the matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; L.R. 7-15.
II. FACTUAL BACKGROUND
MII, a Delaware corporation with its principal office in Maryland, operates hotels and resorts throughout California. (FAC ¶ 10.) Rivera worked as a dishwasher at MII's Marina Del Rey hotel from approximately August 2017 to October 2018. (FAC ¶¶ 7-8.)
Rivera brings this class action on behalf of himself and the putative class he seeks to represent (collectively the "Class"). The Class consists of "all non-exempt employees, including, but not limited to, dishwashers, cooks, runners, bartenders, servers, cashiers, other food and beverage staff, housekeeping staff, front desk staff, maintenance staff, and guest service representatives currently and/or formerly employed by Defendant[s] . . . during the Class Period." (FAC ¶ 1.) Rivera alleges eight causes of action against Defendants: (1) Failure to Pay Wages; (2) Failure to Provide Meal Periods; (3) Failure to Authorize or Permit Rest Periods; (4) Failure to Pay Wages Due at Separation of Employment; (5) Failure to Provide Accurate Wage Statements and Failure to Issue and Maintain Records; (6) Failure to Indemnify for Expenditures or Losses in Discharge of Duties; (7) Unfair Business Practices; and (8) Penalties Under the Private Attorneys General Act. (FAC ¶¶ 2, 38-107.)
III. LEGAL STANDARD
A. Motion to Dismiss
Dismissal under Rule 12(b)(6) "can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). "To survive a motion to dismiss . . . under Rule 12(b)(6), a complaint generally must satisfy only the minimal notice pleading requirements of Rule 8(a)(2)"—a short and plain statement of the claim. Porter v. Jones, 319 F.3d 483, 494 (9th Cir. 2003); see also Fed. R. Civ. P. 8(a)(2). The "[f]actual allegations must be enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The "complaint 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) (internal quotation marks omitted). "A pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.'" Id. (citing Twombly, 550 U.S. at 555).
Whether a complaint satisfies the plausibility standard is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679. A court is generally limited to the pleadings and must construe "[a]ll factual allegations set forth in the complaint . . . as true and . . . in the light most favorable to [the plaintiff]." Lee v. City of L.A., 250 F.3d 668, 688 (9th Cir. 2001) (internal quotation marks omitted). But a court need not blindly accept conclusory allegations, unwarranted deductions of fact, or unreasonable inferences. Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001).
B. Motion to Strike
Federal Rule of Civil Procedure 12(f) provides that "[t]he court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." The decision whether to grant a motion to strike is made at the court's discretion. See Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1528 (9th Cir. 1993), rev'd on other grounds, 510 U.S. 517 (1994). In using its discretion, the court must view the pleadings in the light most favorable to the non-moving party. In re 2TheMart.com Sec. Litig., 114 F. Supp. 2d 955, 965 (C.D. Cal. 2000).
Courts may grant a motion to strike "to avoid the expenditure of time and money that must arise from litigating spurious issues by dispensing with those issues prior to trial . . . ." Whitlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 973 (9th Cir. 2010) (quoting Fantasy, 984 F.2d at 1527). Courts may also grant such a motion in order to streamline the resolution of the action and focus the jury's attention on the real issues in the case. See Fantasy, 984 F.2d at 1528. Yet, motions to strike are generally disfavored due to the limited role that pleadings play in federal practice, and because they are often used as a delaying tactic. Cal. Dep't of Toxic Substances Control v. Alco Pac., Inc., 217 F. Supp. 2d 1028, 1033 (C.D. Cal. 2002).
IV. DISCUSSION
A. Rivera's Opposition
As a preliminary matter, MII argues the Court should not consider Rivera's Opposition because it was filed eight days late. (See Reply in Support of Motion to Dismiss ("Reply") 2-3, ECF No. 28.) Rivera's counsel acknowledges this delay and blames it on "clerical error" resulting in improper calendaring of the deadline. (See Declaration of Alex Perez in Support of Plaintiff's Opposition ¶ 8, ECF No. 27.)
MII objects to counsel's explanation on two grounds. First, MII argues that counsel failed to file a motion to extend time under Rule 6(b)(1)(B). (See Objections to the Decl. of Alex Perez ("MII Objections") 6-7, ECF No. 28-2.) Second, MII argues that counsel's statement lacks foundation. (See id. 7.) MII's objections are OVERRULED. Although counsel could have been clearer, the Court construes his apology and explanation for the delay as a motion for extension of time under Rule 6(b). Moreover, counsel did in fact assert personal knowledge of the clerical error, which the Court has no reason to second-guess given his status as an associate of his firm and attorney of record filing the Opposition in question. (See Perez Decl. ¶ 2.)
Rule 6(b)(1)(B) provides that the court may, for good cause, extend the time for a party to act "if the party failed to act because of excusable neglect." "[L]ike all the Federal Rules of Civil Procedure, [Rule 6(b) is] to be liberally construed to effectuate the general purpose of seeing that cases are tried on the merits." Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1258-59 (9th Cir. 2010) (internal quotation marks omitted).
Given the importance of the relief that MII is seeking—dismissal or striking of Rivera's class allegations without leave to amend—and Plaintiff's counsel explanation, the Court will consider the untimely Opposition. MII does not argue that it was prejudiced by the delay; indeed, it could have requested an extension of time to file its Reply but did not. Further, the delay did not significantly impact the management of this case and there is no evidence of bad faith. See Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 395 (1993) (discussing circumstances to consider when evaluating excusable neglect, including "the danger of prejudice," the length of the delay and impact on proceedings, "the reason for the delay . . . and whether the movant acted in good faith"); Briones v. Riviera Hotel & Casino, 116 F.3d 379, 381 (9th Cir. 1997) (noting that the Pioneer analysis of excusable neglect is applicable to requests under Rule 6(b)).
Nevertheless, exactly because of the importance of this Motion to Plaintiff's case, the Court finds it troubling that counsel would neglect to file his Opposition for over a week. Plaintiff's counsel is on notice that the Court will not tolerate future violations of its rules.
B. Application of Rule 8 and Rule 12(f) to Class Allegations
MII moves to dismiss or strike Rivera's class allegations for failure to plead with specificity. (See Mot. 12, 16 n.5.) MII argues that Rivera failed to adequately plead commonality and typicality as part of his state-wide and location-wide class allegations. (See Mot. 12-15.) Specifically, MII contends that Rivera must explain the basis for his belief that the allegedly unlawful practices are uniform across MII's hotels; demonstrate that he is similarly situated to his putative Class members; and assert factual allegations identifying other hotels and explaining how each alleged violation manifested at those locations. (See Mot. 13-14.) Rivera responds that he has plausibly alleged that he is similarly situated to the putative Class he seeks to represent and that MII's employment policies and practices were uniform across its hotels. (See Opp'n to Mot. ("Opp'n") 3, ECF No. 26.)
The Court rejects MII's arguments for several reasons. First, although some courts have granted motions to strike class allegations under Rule 12(f), "it is in fact rare to do so in advance of a motion for class certification." Cholakyan v. Mercedes-Benz USA, LLC, 796 F. Supp. 2d 1220, 1245 (C.D. Cal. 2011) (collecting cases). Courts are hesitant to strike class allegations before the parties have had an opportunity to develop the factual record and go through the class certification process. See, e.g., Rennick v. NPAS Sols., LLC, No. CV 19-02495-ODW (KSx), 2020 WL 244170, at *2 (C.D. Cal. Jan. 16, 2020) (citing cases).
Here, the Court has not issued a Scheduling Order and presumably, no discovery has taken place. Thus, the Court cannot conclude that there are no circumstances under which the proposed Class could proceed. See In re Wal-mart Stores, Inc. Wage & Hour Litig., 505 F. Supp. 2d 609, 615-16 (N.D. Cal. 2007) (declining to rule on defendant's motion to dismiss or strike class allegations at the pleadings stage because, even though "plaintiffs' class definitions are suspicious and may in fact be improper, plaintiffs should at least be given the opportunity to make the case for certification based on appropriate discovery.")
Second, the Court is not persuaded by MII's Rule 8 argument. MII argues that at the pleading stage, "a plaintiff must include specific factual allegations that [Rule 23's] class action requirements are satisfied." (Mot. 11 (citing several California federal cases).) According to MII, Rivera must also "allege facts that would plausibly suggest that members of the putative class are subjected to the same offending policies." (See Mot. 12 (quoting Mendez v. J.H. Heinz Co., No. CV 12-05652-GHK (DTBx), 2012 WL 12888526, at *4 (C.D. Cal. Nov. 13, 2012)).) Nevertheless, the Ninth Circuit has yet to adopt MII's theory of class action pleading, and other courts have expressly disagreed with its reasoning. See, e.g., Morrelli v. Corizon Health, Inc., No. CV 18-01395-LJO (SABx), 2019 WL 918210, at *13 (E.D. Cal. Feb. 25, 2019) ("The Rule 8 pleading standard has not been held to govern class certification allegations made under Rule 23."); Meyer v. Nat'l Tenant Network, Inc., 10 F. Supp. 3d 1096, 1104 (N.D. Cal. 2014) (citing cases in support of proposition that class allegations "are more appropriately addressed through Rule 23 for procedural reasons").
Here, the Court agrees with the reasoning of the Morrelli court. There, the court denied defendant's motion, finding it "inappropriate . . . to dismiss the class allegations under either Rule 12(b)(6) or strike them under Rule 12(f)." 2019 WL 918210, at *13. The court reasoned that "[b]ecause class actions are procedural devices and not claims for relief under Rule 8, it is incongruent to impose a Rule 8 pleading standard to the elements of class certification such as commonality and typicality." Id. The court also distinguished some of the same cases that MII cites here, finding that they address situations where the named plaintiffs' individual claims did not meet the Rule 8 pleading standard. See id. (citing Ortiz v. Sodexho Operations, LLC, No. CV 10-04158-R (RCx), 2010 WL 11552888 (C.D. Cal. Aug. 12, 2010) & Deleon v. Time Warner Cable LLC, No. CV 09-02438-AG (RNBx), 2009 WL 9426145 (C.D. Cal. July 17, 2009)). Unlike the defendants in Ortiz and Deleon, MII does not argue that Rivera's individual allegations are insufficient to serve as the backbone of his class claims. Thus, at this stage in the litigation, the Court declines to conclude that there are no circumstances under which the proposed Class could proceed. C. Rivera's Second Amended Complaint
MII objects to consideration of the proposed second amended complaint, arguing that, on a motion to dismiss, the Court must limit its inquiry to the complaint itself. (See MII Objections 5-6 (citing Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 925 (9th Cir. 2001)).) Here, however, the Court is not looking to the proposed second amended complaint in determining the propriety of dismissal. The Court already determined that dismissal of the class allegations under Rule 8 is inappropriate. For this reason, MII's objections are OVERRULED.
As to the class claims, Rivera asks the Court for leave to amend his FAC to add more specific allegations that MII maintained common employment practices throughout California as evidenced by its employee handbook. (See Opp'n 6-7; Proposed Second Amended Complaint ¶¶ 17-18, ECF No. 27.) The Court agrees that these new allegations would clarify Rivera's claims as to the uniformity of MII's state-wide and location-wide employment practices and address MII's concerns of a completely unwarranted fishing expedition. See Morrelli, 2019 WL 918210, at *13-14 (drawing a reasonable inference from plaintiff's class allegations that "the Rule 23 commonality and typicality requirements can be met, which is sufficient to ameliorate concerns about potential discovery fishing expeditions"). Because the Court does not find bad faith, undue delay, prejudice, or futility in Rivera's proposed amendments, the Court GRANTS Rivera leave to file the proposed second amended complaint. See Pepsi-Cola Metro. Bottling Co. v. Ins. Co. of N. Am., Inc., No. CV 10-02696-SVW (MANx), 2010 WL 11549719, at *1 (C.D. Cal. Nov. 18, 2010); Fed. R. Civ. P. 15(a)(2) ("The court should freely give leave [to amend] when justice so requires.").
V. CONCLUSION
MII's arguments are more properly resolved on a motion for class certification after the Parties have had an opportunity to develop a factual record. Thus, the Court DENIES MII's Motion to Dismiss. (ECF No. 25.) Rivera shall file and serve the proposed second amended complaint within seven days from the date of this Order.
IT IS SO ORDERED.
April 23, 2020
/s/ _________
OTIS D. WRIGHT, II
UNITED STATES DISTRICT JUDGE