Bush v. Vaco Technology Services, LLC et al, No. 5:2017cv05605 - Document 60 (N.D. Cal. 2018)

Court Description: ORDER GRANTING 50 , 51 DEFENDANTS MOTIONS TO DISMISS SECOND AMENDED COMPLAINT WITH LEAVE TO AMEND. Amended Complaint due January 11, 2019. Signed by Judge Beth Labson Freeman on 12/3/2018. (blflc2S, COURT STAFF) (Filed on 12/3/2018)
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1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 SAN JOSE DIVISION 4 5 CHRISTIANA BUSH, 6 Plaintiff, v. 7 8 VACO TECHNOLOGY SERVICES, LLC, et al., 9 Defendants. Case No. 17-cv-05605-BLF ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS SECOND AMENDED COMPLAINT WITH LEAVE TO AMEND [Re: ECF 50, 51] 10 United States District Court Northern District of California 11 Before the Court are Defendants’ Google, LLC (“Google”) and Vaco LaJolla, LLC, Vaco 12 Los Angeles, LLC, Vaco Orange County, LLC, Vaco San Francisco, LLC, and Vaco Technology 13 14 15 Services, LLC (collectively, “Vaco Defendants” or “Vaco”) motions to dismiss the Second Amended Complaint, or in the alternative strike class allegations. ECF 50 (“Google Mot.”), 51 (“Vaco Mot.”). Both motions primarily challenge Bush’s class allegations and claims; however, 16 Vaco Defendants also argue that each of them except Vaco Technology Services, LLC should be 17 dismissed. The Court held a hearing on the motions on November 29, 2018. For the reasons that 18 follow, the motions are GRANTED WITH LEAVE TO AMEND. 19 I. 20 21 22 BACKGROUND Much of the relevant background is included in this Court’s Order dismissing Bush’s First Amended Complaint (“FAC Order”). See ECF 44 (“FAC Order”). By way of brief background,1 Bush was hired by Defendant Vaco Technology Services, LCC (“VTS”) as a non-exempt 23 employee and placed at Google beginning in May 2014 and served in several jobs there. Second 24 25 Amended Complaint (“SAC”) ¶¶ 26–29, ECF 47. In September 2015, she was transferred by Google to Google’s Expedition Team as an Expedition Team Lead, at which point VTS allegedly 26 27 28 The allegations describing Bush’s job duties remain largely unchanged between the First and Second Amended Complaints. For clarity, the Court cites the Second Amended Complaint here. 1 1 misclassified her as an outside salesperson at the direction of Google, which made her an exempt 2 employee. Id. ¶ 30. Her role as Expedition Team Lead required her to spend many hours driving 3 to various schools in Northern California to deliver phones, train teachers on how to use them, and 4 provide students with virtual reality experiences. See id. ¶¶ 31–34, 41–46. Because she was 5 classified as an exempt employee, she allegedly did not receive meal or rest periods, was not paid 6 overtime or double-time wages, and was not reimbursed for expenses such as driving her personal 7 vehicle to various job sites and charging approximately seventy-five cellphones at home for use by 8 staff. Id. So, Bush alleges that she and others similarly situated were harmed as a result of 9 Defendants’ “policy or practice” of violating various Labor Code provisions and the FLSA, United States District Court Northern District of California 10 including misclassification. Id. ¶ 21. 11 In her First Amended Complaint (“FAC”), Plaintiff brought nine causes of action against 12 Defendants for various wage-and-hour violations and unfair business practices. See FAC ¶¶ 47– 13 155, ECF 20. She also sought to represent two proposed classes: a “Google Staffing Class” and a 14 “Google Expedition Class,” as well as several sub-classes. See FAC ¶ 17. The Google Staffing 15 Class consisted of “[a]ll persons employed by Google through any staffing agencies and/or any 16 other third parties who worked in hourly or non-exempt positions in California during the 17 Relevant Time Period.” Id. The Google Expedition Class included “[a]ll persons employed 18 directly by Google and/or through any staffing agencies and/or any other third parties who worked 19 in Google Expedition Team positions in the United States during the Relevant Time Period.” 2 Id. On May 2, 2018, this Court issued an order granting Google’s motion to dismiss the First 20 21 Amended Complaint. At the hearing on that motion and in the FAC Order, the Court directed 22 Plaintiff to “narrow[] the class allegations substantially” because such broad allegations “beg 23 discovery abuse.” Id. at 5. 24 For example, as to Bush’s claims for failure to pay meal and rest periods, the Court found 25 “the FAC [was] completely devoid of any allegations tying Bush’s experience to the thousands of 26 27 28 Bush also proposed a UCL Class that consisted of “[a]ll Google Staffing Class and Google Expedition Class members employed by Defendants in California during the Relevant Time Period.” FAC ¶ 17. 2 2 1 individuals who performed work for Google that are encompassed in the Google Staffing Class 2 and Google Expedition Class.” Id. at 11. Bush’s allegations were in no way limited to individuals 3 in her position as a Google Expedition Team Lead, nor to the Expedition Team more generally. 4 Likewise, the FAC sought “to include every individual performing services for Google in 5 California through any staffing agency or undefined ‘third party,’ which could encompass anyone 6 from a temporary worker making minimum wage to consultants and legal counsel earning 7 thousands of dollars per hour.” Id. Ultimately, the Court held that the FAC did “not plausibly 8 allege claims on behalf of this overbroad class, or that Bush could somehow represent all of 9 them,” so it granted Google’s motion and noted it would “consider striking allegations prior to 10 United States District Court Northern District of California 11 discovery to the extent they remain overbroad.” Id. And the Court made similar holdings as to the rest of Bush’s claims, in addition to finding 12 the allegations implausible or factually deficient. For example, on Bush’s claim for failure to 13 indemnify, the Court held that Bush “fail[ed] to plead any facts regarding Google’s 14 ‘reimbursement policies and practices’ with respect to reimbursing class members who incurred 15 expenses due to gas and mileage or charging cell phones at home.” Id. at 17. The Court 16 ultimately held that “Bush had not alleged sufficient facts to state any claims against Google on an 17 individual or class basis.” Id. at 25. The Court concluded by admonishing Plaintiff: “[T]he Court 18 anticipates that Bush will significantly narrow her class allegations in the Second Amended 19 Complaint. In the event that Bush continues to pursue claims on behalf of a similarly disparate 20 class without any factual support, the Court will consider striking her class allegations to the 21 extent they remain so overly broad as to invite discovery abuse.” Id. 22 In her Second Amended Complaint (“SAC”), Bush brings all of the same causes of action 23 (except for her Private Attorneys General Act claim) and again raises claims on behalf of several 24 proposed classes and sub-classes. The only change she made to her original two proposed classes 25 was to remove individuals hired through “any other third parties,” though her Google Staffing 26 Class still includes “[a]ll persons employed by Google through any staffing agencies who worked 27 in hourly or non-exempt positions in California” and her Google Expedition Class still includes 28 “[a]ll persons employed directly by Google and/or through any staffing agencies who worked in 3 1 Google Expedition Team positions . . . .” SAC ¶ 17. Remarkably, she has also elected to add a 2 new class, the Vaco Class, which encompasses “[a]ll persons directly employed by Vaco Entities 3 [i.e., Vaco Defendants] who worked in hourly or non-exempt positions in California during the 4 Relevant Time Period,” and several sub-classes. Id. Google and the Vaco Defendants each moved to dismiss these class allegations and claims 5 6 7 8 United States District Court Northern District of California 9 for failing to cure the deficiencies identified in the FAC Order. II. DISCUSSION To say that Bush failed to comply with this Court’s clear instructions is an understatement. The Court instructed Bush that her class allegations were far too broad—encompassing 10 individuals who perform myriad disparate jobs at Google either via direct hire or through a 11 staffing agency or some other third party. Bush also failed to allege how her experiences related 12 in any way to any of these other individuals’ experiences. The SAC fails for these same reasons 13 and more. 14 Describing the breadth of these class allegations is rather simple. Bush alleges she was 15 staffed by a specific staffing agency (VTS) for a specific company (Google) in a specific job 16 (Expedition Team Leader) that required specific job duties. And these job duties were not run-of- 17 the-mill: Bush was required to travel to various locations, transport phones, train on and 18 demonstrate the functionalities of the phones, and ensure the phones were ready for the next set of 19 demonstrations (including charging the phones at home). See SAC ¶¶ 30–35. Bush’s class 20 allegations are overbroad at each and every step in this narrowing chain. 21 Bush’s allegations are limited to one staffing agency—VTS. See Vaco Mot. at 11–12; 22 Google Mot. at 8. Bush alleges that she was hired by VTS and that VTS was her employer of 23 record and paid her wages. See SAC ¶¶ 26, 28. Her class allegations, by contrast, cover everyone 24 employed by Google through “any staffing agencies,” not just VTS. See id. ¶ 17. And her Vaco 25 Class covers certain individuals employed by any Vaco Defendant, not just VTS. Her conclusory 26 allegations that Vaco Defendants and Google have the same policies regarding calculating wages 27 or interviewing candidates, see id. ¶¶ 25, 50, 51; Vaco Opp. at 12–13, are insufficient to warrant 28 allowing Bush to represent individuals not staffed by VTS, or even to allow Bush to bring claims 4 United States District Court Northern District of California 1 against Vaco Defendants. As such, Bush’s claims against all Vaco Defendants except VTS are 2 DISMISSED WITH LEAVE TO AMEND to add additional allegations warranting inclusion of 3 these entities as Defendants. 4 Bush’s allegations are also limited to her work at a specific company—Google. The Vaco 5 Class is overbroad because it covers employees of Vaco Defendants staffed at any company. See 6 Vaco Mot. at 10–11; Google Mot. at 7–8. The current allegations do not sufficiently allow for 7 such a broad class definition. Bush’s allegations and claims are tailored to her job duties, as 8 discussed below. Conclusory allegations that Vaco Defendants (or VTS) have general policies 9 that they applied to Bush in a particular way does not support an inference that those policies are 10 equally applicable to or were similarly applied to members of the Vaco Class who worked for 11 different companies in different positions. This is especially true when the Court considers that 12 Bush has adequately alleged that Google was Plaintiff’s joint employer,3 see SAC ¶¶ 25–28, 13 requiring the Court to infer that Google had some control over the policies used for Plaintiff, but 14 not other members of the Vaco Class, see, e.g., id. ¶ 30 (“Vaco Technology Services reclassified 15 Plaintiff as an outside salesperson at the direction of Google . . . .” (emphasis added)). To be 16 clear, the Court is not holding that Bush cannot allege a sufficient class of individuals staffed by 17 VTS (or even the Vaco Defendants); instead, the Court simply holds that the SAC does not 18 contain such sufficient allegations. Bush was also hired at Google in a specific job—Expedition Team Lead. But the Google 19 20 Staffing Class encompasses all persons employed by Google in any hourly or non-exempt 21 positions. See id. ¶ 17; Vaco Mot. at 9–10; Google Mot. at 8–9. As the Court noted in its FAC 22 Order, this definition “could encompass anyone from a temporary worker making minimum wage 23 to consultants and legal counsel earning thousands of dollars per hour.” FAC Order at 11. The 24 heart of Plaintiff’s SAC is that she was misclassified as an exempt employee based on her role as 25 an Expedition Team Lead. Yet she includes no allegations from which this Court could infer that 26 27 28 Google argues that Bush’s allegations are insufficient to establish a joint employer relationship. See Google Mot. at 6–7. Despite recognizing that for her individual claims Bush must sufficiently plead Google was her employer, Google does not move to dismiss her individual claims. 5 3 1 her role was comparable in any way to the roles of every other person at Google in non-exempt 2 positions staffed by a staffing agency. At the hearing, Bush argued that the SAC alleges that she 3 performed two other non-exempt jobs at Google. Although that is true, the SAC is devoid of any 4 facts showing missed rest breaks, meal periods, or any other alleged Labor Code or Fair Labor 5 Standards Act violations. United States District Court Northern District of California 6 More specifically, her role as Expedition Team Lead required her to perform discrete, 7 unique job duties, which she does not allege that other employees at Google or who were staffed 8 by Vaco Defendants experienced. Indeed, she does not even allege that other employees on the 9 Expedition Team had these duties. At most, she conclusorily encapsulates all of the classes in her 10 description of her duties. For example, she alleges that “[p]rior to each class, Plaintiff and the 11 putative class were required to set up equipment that would be utilized by students who participate 12 in virtual reality tours.” SAC ¶ 44; see also, e.g., id. ¶ 32 (“Plaintiff and the putative class would 13 then drive home . . . .”); id. ¶ 35 (“Consequently, as a Google Expedition Team Lead, Plaintiff and 14 the putative class were misclassified . . . .”). It is not plausible to infer that someone staffed as a 15 janitor would have had this task. What’s more, she fails to allege even that others on the 16 Expedition Team would have had these roles. See Google Mot. at 9. Her conclusory allegations 17 that the putative class had similar duties to her are simply implausible. Indeed, she does not allege 18 that she faced any of these wage and hour violations when she was in either of her other positions 19 at Google, prior to becoming an Expedition Team Lead. See Vaco Mot. at 9–10. 20 Bush’s only other allegations connecting any of these individuals speak to alleged policies 21 that “Defendants” followed with respect to their employees. See, e.g., id. ¶ 73 (“Defendants 22 maintained a policy or practice of not providing Plaintiff and [certain classes and sub-classes] with 23 uninterrupted meal periods of at least thirty (30) minutes for each five (5) hour work 24 period . . . .”); id. ¶ 88 (“Defendants written policies do not provide that employees may take a rest 25 break for each four hours worked, or major fraction thereof, and that rest breaks should be taken in 26 the middle of each work period insofar as practicable.”). Without more, these cannot possibly 27 sustain such broad class definitions, especially given that she does not even allege what each 28 Defendant was responsible for. 6 Once the proposed classes are properly narrowed, who’s left? At most, on these 1 2 allegations, Bush might be able to proceed with a putative class of Expedition Team Leads, either 3 staffed by VTS or perhaps staffed directly by Google, though even the latter would be a close call, 4 given that VTS and Google are alleged to have acted in tandem as to Plaintiff. See Vaco Mot. at 2 5 (not challenging the Google Expedition Team to the extent it is limited to “team leads”). But 6 Plaintiff does not allege such a class. Thus, all of her class allegations are DISMISSED WITH 7 LEAVE TO AMEND.4 The Court means what it says this time: Failure to cure these deficiencies will lead the 8 United States District Court Northern District of California 9 Court to strike permanently Bush’s class allegations from her pleading. The Court fully 10 recognizes that dismissing or striking class allegations at the pleading stage is rare. See, e.g., In re 11 Wal-Mart Stores, Inc. Wage & Hour Litig., 505 F. Supp. 2d 609, 615 (N.D. Cal. 2007). But given 12 the breadth of discovery these class allegations invite, the Court believes these class allegations, 13 which lack any plausible basis, are the rare case warranting dismissal. See Ovieda v. Sodexo 14 Operations, LLC, No. 12-1750-GHK, 2012 WL 1627237, *10–*11 (C.D. Cal. May 7, 2012) 15 (“Plaintiff alleges no facts to demonstrate or even suggest that any member of the putative class 16 had similar work experiences.”); cf. Jue v. Costco Wholesale Corp., No. 10-CV-00033-WHA, 17 2010 WL 889284, at *6 (N.D. Cal. Mar. 11, 2010) (“[C]lass certification discovery is not a 18 substitute to the pleading requirements of Rule 8 and Twombly. Class allegations must [be] 19 supported by sufficient factual allegations demonstrating that the class device is appropriate and 20 discovery on class certification is warranted.”). 21 III. ORDER For the foregoing reasons, the SAC is DISMISSED WITH LEAVE TO AMEND to 22 23 narrow the class allegations and allege sufficiently that the non-VTS Vaco Defendants are proper 24 Defendants in this case. 25 26 27 28 4 Google also argues that references to equitable tolling should be stricken from the SAC. Because the Court dismisses all class claims, this request is DENIED WITHOUT PREJUDICE. 7 1 IT IS SO ORDERED. 2 3 4 5 Dated: December 3, 2018 ______________________________________ BETH LABSON FREEMAN United States District Judge 6 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8