Terrance D Rutherford et al v. FIA Card Services NA et al, No. 2:2013cv02934 - Document 61 (C.D. Cal. 2014)
Court Description: ORDER GRANTING DEFENDANTS MOTIONS TO DISMISS 51 , 52 . Plaintiffs SAC is DISMISSED with prejudice by Judge Dean D. Pregerson(MD JS-6. Case Terminated) . (lc). Modified on 9/5/2014 (lc).
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Terrance D Rutherford et al v. FIA Card Services NA et al Doc. 61 1 2 O 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 TERRANCE D. RUTHERFORD, individually and on behalf of other similarly situated individuals, 13 Plaintiff, 14 v. 15 16 17 18 FIA CARD SERVICES, N.A., (Bank of America), ALASKA AIRLINES, INC. and HORIZON AIR INDUSTRIES, INC., Defendants. ___________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 13-02934 DDP (MANx) ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS [Dkt. Nos. 51 and 52] 19 20 Presently before the court are two Motions to Dismiss, one 21 filed by Defendant FIA Card Services, N.A. (“FIA” or “the Bank”) 22 and the other by Defendants Alaska Airlines, Inc. (“Alaska”) and 23 Horizon Air Industries, Inc. (together with Alaska, the 24 “Airlines”). 25 heard oral argument, the court grants the motions and adopts the 26 following order. 27 /// 28 /// Having considered the submissions of the parties and Dockets.Justia.com 1 2 I. Background As described in detail in this court’s earlier orders, 3 Plaintiff works for Alaska. 4 card operations. 5 partnership, under which FIA agreed to issue “Alaska Airlines” 6 brand credit cards and make payments to the Airlines. 7 and Bank further agreed to establish an “Incentive Program,” under 8 which airline employees would be trained by the airlines and paid 9 by the Bank to market the Alaska credit cards to consumers. 10 FIA operates Bank of America’s credit The Airlines and FIA entered into a marketing The Airlines Under the Incentive Program, Airlines employees would 11 distribute credit card applications, which included a space for the 12 employees’ identifying information, to passengers and other third 13 parties. 14 the distributing Airlines employees or mail the applications 15 directly to the Bank. Applicants could either submit the applications through 16 Employees were offered five dollars for each credit card 17 application submitted to the Bank, so long as the application 18 contained enough information to allow the Bank to accept or reject 19 the application. 20 applications that were ultimately approved. 21 deposit these incentive amounts into employee bank accounts, along 22 with wages. 23 Airlines also encouraged employee participation in the incentive 24 program by offering cash and other prizes to “top performers.” 25 (SAC ¶¶ 38-39). Employees were offered forty-five dollars for The Airlines would (Second Amended Complaint (“SAC”) ¶ 40.)1 The 26 27 28 1 This allegation notwithstanding, the SAC alleges that the Bank offered to pay the incentives, “on behalf of itself and the [A]irlines.” (SAC ¶ 19.) 2 1 The SAC alleges that Plaintiff distributes over 200 2 applications per month. (SAC ¶ 47.) The SAC lists several dozen 3 instances in which, between January and September 2013, Plaintiff 4 received credit card applications and forwarded them to the Bank. 5 (SAC ¶ 51.) 6 people to whom applications are distributed do not return their 7 applications to Plaintiff. 8 whether the Bank processed any of the applications submitted 9 directly by applicants, with his identifying information. Plaintiff alleges, however, that the vast majority of (SAC ¶ 48.) Plaintiff does not know (SAC ¶¶ 10 54-55.) 11 the relevant period of $5,260. 12 alleges that he is ranked as a “top performer” in the incentive 13 program. 14 Plaintiff has, however, received incentive payments during (SAC ¶ 56.)2 Plaintiff also (SAC ¶ 55.) Plaintiff alleges that he has not been paid the amounts due to 15 him under the incentive program. 16 causes of action for an accounting, common count for the reasonable 17 value of services rendered, and common count for a book account. 18 Defendants now move to dismiss the SAC. (SAC ¶ 61.) His SAC alleges 19 II. 20 A complaint will survive a motion to dismiss when it contains Legal Standard 21 “sufficient factual matter, accepted as true, to state a claim to 22 relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 23 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 24 570 (2007)). 25 “accept as true all allegations of material fact and must construe When considering a Rule 12(b)(6) motion, a court must 26 27 28 2 Had all 117 of the applications Plaintiff himself submitted been approved, Plaintiff would have been entitled to $5,265. 3 1 those facts in the light most favorable to the plaintiff.” Resnick 2 v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000). 3 need not include “detailed factual allegations,” it must offer 4 “more than an unadorned, the-defendant-unlawfully-harmed-me 5 accusation.” 6 allegations that are no more than a statement of a legal conclusion 7 “are not entitled to the assumption of truth.” Id. at 679. 8 other words, a pleading that merely offers “labels and 9 conclusions,” a “formulaic recitation of the elements,” or “naked Iqbal, 556 U.S. at 678. Although a complaint Conclusory allegations or In 10 assertions” will not be sufficient to state a claim upon which 11 relief can be granted. 12 quotation marks omitted). 13 Id. at 678 (citations and internal “When there are well-pleaded factual allegations, a court should 14 assume their veracity and then determine whether they plausibly 15 give rise to an entitlement of relief.” Id. at 679. 16 must allege “plausible grounds to infer” that their claims rise 17 “above the speculative level.” Twombly, 550 U.S. at 555. 18 “Determining whether a complaint states a plausible claim for 19 relief” is a “context-specific task that requires the reviewing 20 court to draw on its judicial experience and common sense.” 21 556 U.S. at 679. 22 III. Plaintiffs Iqbal, Discussion 23 A. 24 Defendants first contend that the SAC must be dismissed 25 because it fails to allege facts to support Plaintiff’s contention 26 that Defendants owe him any money. 27 that the facts alleged, specifically those regarding the number of 28 applications he distributed and submitted, and the amount of Whether the SAC Alleges an Amount Owed 4 In response, Plaintiff contends 1 compensation he received, are sufficient to give rise to a 2 plausible inference that he has been underpaid. 3 Defendants highlight the fact that the amount of compensation 4 plaintiff received, $5,260, is within five dollars of the amount 5 Plaintiff would have received if every single one of the 6 applications he submitted had been approved. 7 dispute that it is extremely implausible that every application he 8 submitted was approved. 9 implausible that every application that every one of the 117 Plaintiff does not Indeed, Defendants argue that it is 10 applications contained sufficient information to be processed, let 11 alone approved. 12 The question, however, is whether these facts could support an 13 inference that Plaintiff has been underpaid. 14 Plaintiff’s receipt of so much money, given the relatively small 15 number of applications Plaintiff himself submitted, indicates that 16 Plaintiff must have received payment for some applications 17 submitted directly by applicants. 18 it may be, is not the only one supported by the facts alleged. 19 Defendants argue that This inference, plausible though Plaintiff has alleged that fully 90% of customers do not 20 return their applications to Plaintiff. 21 confirm at this stage that any of those customers, who likely 22 exceed 1,000 in number, actually did submit an application, 23 Defendants concede that some of them must have. 24 Plaintiff’s status as a “top performer” and the possibility that 25 Plaintiff’s submissions, comprising only 10% of distributed 26 applications, alone could account for almost all of the payments 27 28 5 While Plaintiff cannot Considering 1 received, the SAC alleges sufficient facts to give rise to an 2 inference that Plaintiff has not been fully compensated.3 3 4 1. Whether Alaska Owes Plaintiff Anything In addition to the argument discussed above, Alaska contends 5 that all claims against Alaska must be dismissed because the SAC 6 does not allege that Alaska itself owes Plaintiff any money. 7 Though the SAC alleges that Alaska deposits incentive payments into 8 employee bank accounts, nowhere does it allege that Alaska actually 9 pays employees. Rather, the SAC alleges that the Bank pays Alaska 10 employees. 11 does not address this argument. 12 Alaska are DISMISSED. (SAC ¶ 40.) Plaintiff’s opposition to Alaska’s Motion Accordingly, all claims against 13 B. 14 The Bank next asserts that Plaintiff’s claim for an accounting 15 must be dismissed because an accounting is a remedy, not a cause of 16 action. 17 merely an equitable remedy, and therefore cannot be maintained as 18 an independent cause of action.” 19 7275 GAF, 2011 WL 7637785 at *8 (C.D. Cal. Dec. 2, 2011). 20 courts, however, citing Tesselle v. Mcloughlin, 173 Cal.App.4th 156 21 (2009), have concluded that an accounting can exist as an 22 independent equitable cause of action. 23 Inc. v. Hon, No. 11-cv-5835 ODW, 2012 WL 1413681 at * 11 (C.D. Cal. 24 Apr. 24, 2012); see also Baidoobonso-Iam v. Bank of Am., No. CV 10- Accounting Claim Indeed, some courts have held “that an accounting is Fradis v. Savebig.com, No. CV 11Other See, e.g., Dahon North Am., 25 26 27 28 3 Indeed, if Plaintiff distributed 200 applications a month and only received a total of 117 back, over 1,500 applications remain unaccounted for. Even if the majority of those went unsubmitted, the number is high enough to support an inference that Plaintiff was underpaid. 6 1 9171 CAS, 2011 WL 3103165 at *6 (C.D. Cal. Jul. 25, 2011) (“An 2 accounting may take the form of either a legal remedy or an 3 equitable claim.”). 4 This court agrees with the latter approach. A cause of action for an accounting requires that “a 5 relationship exist[] between the plaintiff and defendant that 6 requires an accounting, and that some balance is due the plaintiff 7 that can only be ascertained by an accounting.” 8 relationship giving rise to an accounting claim need not 9 necessarily be a fiduciary one, courts typically require that it Though the 10 reflect some degree of confidentiality or closeness. 11 Cal.App.4th at 179.; Dahon, 2012 WL 1413681 at *13; Fradis, 2011 WL 12 7637785 at *9; Canales v. Fed. Home Loan Mortgage Corp., No. CV 11- 13 2819 PSG, 2011 WL 3320478 at * 8 (C.D. Cal. Aug. 1, 2011). 14 Tesselle, 173 Here, the SAC conclusorily alleges that both the Airlines and 15 the Bank owe Plaintiff a fiduciary duty (SAC ¶¶ 79-80). 16 makes no further factual allegations regarding this supposed 17 fiduciary relationship, nor do Plaintiff’s Oppositions make any 18 attempt to argue that such a duty exists beyond a single statement 19 that “present circumstances, where Defendant holds all the books 20 and records necessary to calculate proper payment [are] one of 21 ‘trust and repose.’” (Opp. at 11-12.) 22 are insufficient to establish Plaintiff and the Bank shared the 23 type of relationship that would give rise to an independent 24 accounting claim.4 25 C. The SAC The allegations of the SAC Common Count for Reasonable Value of Services Rendered 26 4 27 28 Though Plaintiff’s opposition makes some reference to an agent-principal relationship, the SAC contains no allegations to that effect, nor do the facts alleged appear to support any such relationship. 7 1 “[I]t is well settled that there is no equitable basis for an 2 implied-in-law promise to pay reasonable value when the parties 3 have an actual agreement covering compensation.” 4 Inc. v. First Alliance Mortgage Co.. 41 Cal.App.4th 1410, 1419 5 (1996). 6 Plaintiff precise amounts for various types of submitted 7 applications. 8 Cause of Action for Common Count for Reasonable Value of Services 9 Rendered is adequately pled because Federal Rule of Civil Procedure Hedging Concepts, The SAC alleges the existence of an agreement to pay Nevertheless, Plaintiff contends that the Second 10 8(d)(3) allows inconsistent claims to be pled. 11 however, allow a plaintiff to circumvent state law by stating a 12 claim for both express and quasi contract. 13 Privacy Litigation, 761 F.Supp.2d 705, 718 (N.D. Cal. 2011) 14 (“Although Rule 8 . . . allows a party to state multiple, even 15 inconsistent claims, the rule does not allow a party invoking state 16 law to assert an unjust enrichment claim while also alleging an 17 express contract.”); Custom LED, LLC v. eBay, Inc., No. C 12-350 18 SI, 2012 WL 1909333 at *5 (N.D. Cal. 2012). 19 Cause of Action is DISMISSED with prejudice. 20 21 D. Rule 8 does not, See In re Facebook Plaintiff’s Second Common Count for A Book Account “A book account is a detailed statement of debit/credit 22 transactions kept by a creditor in the regular course of business, 23 and in a reasonably permanent manner.” 24 Cal.4th 574, 579 n.5 (2007). 25 agreement or conduct of the parties in a commercial transaction. 26 Nonetheless, the mere recording . . . or the incidental keeping of 27 accounts under an express contract does not of itself create a book Reigelsperger v. Siller. 40 “A book account is created by the 28 8 1 account.” 2 Cocal Cola Bottling Corp., 99 Cal.App.3d 711, 728 (1979). 3 H. Russell Taylor’s Fire Preverntion Serv., Inc. v. Here, the SAC alleges only that “a book account was created . 4 . . as a result of Plaintiff’s . . . participation in the Incentive 5 program for Defendants’ benefit.” 6 assertion is insufficient to sustain a common count for a book 7 account. 8 prejudice. 9 IV. 10 11 (SAC ¶ 106.) This naked Plaintiff’s Third Cause of Action is DISMISSED, with Conclusion For the reasons stated above, Defendants’ Motions to Dismiss are GRANTED. Plaintifss’ SAC is DISMISSED with prejudice. 12 13 14 15 IT IS SO ORDERED. 16 17 18 Dated: September 5, 2014 DEAN D. PREGERSON United States District Judge 19 20 21 22 23 24 25 26 27 28 9
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