Michael Joseph Metcalf v. Yusen Logistics (Americas) Inc.

CUENNTITREADL S DTIASTTERSIC DTI SOTFR CICATL ICFOOURRNTIA

CIVIL MINUTES - GENERAL

Case No. CV 21-5912-GW-PVCx Date August 30, 2021

Title Michael Joseph Metcalf v. Yusen Logistics (Americas), Inc., et al.

Present: The Honorable GEORGE H. WU, UNITED STATES DISTRICT JUDGE

Javier Gonzalez Terri A. Hourigan

Deputy Clerk Court Reporter / Recorder Tape No.

Attorneys Present for Plaintiffs: Attorneys Present for Defendants:

Shoham J. Solouki Daniel Chammas

PROCEEDINGS: TELEPHONIC HEARING ON: DEFENDANT YUSEN LOGISTICS

(AMERICAS) INC.'S MOTION TO DISMISS COMPLAINT, OR IN

THE ALTERNATIVE, STRIKE CLASS ALLEGATIONS [10]; YUSEN

LOGISTICS CO. LTD.'S MOTION TO DISMISS ACTION AGAINST

YUSEN LOGISTICS CO., LTD. PURSUANT TO RULE 11((4), AND (5),

OR IN THE ALTERNATIVE, TO QUASH SERVICE OF SUMMONS

AND COMPLAINT [11]; and PLAINTIFF'S MOTION TO REMAND

ACTION TO SUPERIOR COURT [12]

Court and counsel confer. The Tentative circulated and attached hereto, is adopted as the Court’s Final

Ruling. The Court denies Plaintiff’s motion to remand. The Court grants Yusen Japan’s motion to

dismiss on personal jurisdiction grounds and does not address the other issues raised therein. The Court

grants YLA’s motion to dismiss each of the claims asserted in the Complaint, with leave to amend, but

denies that motion to the extent it seeks to either dismiss or strike Plaintiff’s class-related allegations.

Plaintiff will have until September 13, 2021 to file a First Amended Complaint.

The scheduling conference set for September 9, 2021, is continued to September 30, 2021 at 8:30 a.m.

The parties are to file an updated joint Rule 26(f) report by noon on September 27, 2021.

: 03

Metcalf v. Yusen Logistics (Americas) Inc., et al., Case No. 2:21-cv-05912-GW-(PVCx)

Tentative Rulings on: (1) Motion to Remand Action to Superior Court, (2) Motion to

Dismiss Action against Yusen Logistics Co., Ltd. Pursuant to Rule 12(b)(2), (4), and (5),

or in the Alternative, to Quash Service of Summons and Complaint, and (3) Motion to

Dismiss Complaint, or in the Alternative, Strike Class Allegations

I. Background

Michael Joseph Metcalf (“Plaintiff”) sues Yusen Logistics (Americas) Inc.

(“YLA”) and Yusen Logistics Co., Ltd dba Yusen Logistics Group (“Yusen Japan” and,

together with YLA, “Defendants”)), asserting ten claims for relief: 1) failure to provide

required meal periods; 2) failure to provide required rest periods; 3) failure to pay

overtime wages; 4) failure to pay minimum wage; 5) failure to timely pay wages; 6)

failure to pay all wages due to discharged and quitting employees; 7) failure to maintain

required records; 8) failure to furnish accurate itemized statements; 9) failure to

indemnify employees for necessary expenditures incurred in discharge of duties; and 10)

unfair and unlawful business practices. Defendants allegedly employed Plaintiff as a

non-exempt employee, and Plaintiff seeks to represent a class of other current and former

non-exempt employees of Defendants who were employed by Defendants and worked at

any locations in the State of California at any time during the four years preceding the

filing of the lawsuit continuing through to the end of the suit. See Complaint ¶¶ 3-5.

According to Plaintiff, Defendants had a “systematic course of illegal payroll

practices and policies” leading to not paying Plaintiff and putative class members all

wages earned and due, including by failing to pay overtime premiums, failing to provide

rest and meal periods, failing to properly maintain records, failing to provide accurate

itemized statements for each pay period, failing to properly compensate for necessary

expenditures (including expenses for uniforms, travel expenses, and cell phone usage),

and requiring, permitting or suffering work off-the-clock. See id. ¶¶ 12, 15(B), 17-19,

22-23, 27, 32, 36, 47, 50-51, 55. Defendants also failed to timely pay all accrued wages

due to employees who were discharged or who quit. See id. ¶ 43.

Yusen Japan removed the action to this Court on July 21, 2021. Plaintiff now

moves to remand (“Motion One”). Yusen Japan, for its part, moves to dismiss (or to

quash service) due to deficient process, insufficient service of process, and/or lack of

personal jurisdiction (“Motion Two”). Finally, YLA moves to dismiss the Complaint or

to strike the Complaint’s class allegations (“Motion Three”).

II. Analysis

A. Motion One – Remand

Plaintiff’s motion to remand is based on the assertion that: 1) Yusen Japan’s

removal of the case to this Court was untimely, 2) that CAFA’s “Local Controversy”

exception applies1 and 3) that Yusen Japan insufficiently-demonstrated the requisite

amount-in-controversy for CAFA jurisdiction. In his Reply brief, however, while

Plaintiff does not waive the other two assertions, he limits his argument to the timeliness

issue. See Docket No. 18, at 3:22-4:25.

With respect to the timeliness issue, Plaintiff argues that he served Yusen Japan

on June 8, 2021.2 He therefore contends that the July 21, 2021 removal of the case to this

Court was outside the 30-day window in which to do so under 28 U.S.C. § 1446(b).

Remand is therefore mandatory, if Plaintiff is correct about the foregoing.

Under 28 U.S.C. § 1446(b)(1), a notice of removal “shall be filed within 30 days

after the receipt by the defendant, through service or otherwise, of a copy of the initial

pleading setting forth the claim for relief upon which such action or proceeding is based.”

Plaintiff argues that “the Summons and Complaint . . . clearly stated on their face that the

instant action was proper for removal” and that “every basis for removal stated in [the]

Notice of Removal was based solely on the contents of the Complaint itself.” Docket No.

12, at 8:24-9:4. The trouble with Plaintiff’s argument here is that just because the second

proposition is (or may be) true does not mean the first is true.

“[T]he first thirty-day period for removal in 28 U.S.C. § 1446(b) only applies if

the case stated by the initial pleading is removable on its face.” Harris v. Bankers Life &

1 Plaintiff also briefly indicates that he believes CAFA’s “Home State” exception applies. See Docket No.

12, at 5:7-9, 9:18-20. However, he argues only for the application of the Local Controversy exception. See

id. at 9:22-11:26.

2 The effectiveness of that service is at issue in Motion Two. It need not be addressed or resolved for

purposes of Motion 1, for the reasons explained infra. However, Plaintiff is incorrect that mere “receipt” of

the Complaint is sufficient to start any 30-day clock for removal running notwithstanding the “receipt . . .

through service or otherwise” language of 28 U.S.C. § 1446(b)(1). See Murphy Bros., Inc. v. Michetti Pipe

Stringing, Inc., 526 U.S. 344, 347-48 (1999); Phillips & Stevenson, RUTTER GROUP PRAC. GUIDE,

FEDERAL CIV. PRO. BEFORE TRIAL (The Rutter Group 2020), ¶ 2:3256, at 2D-157; see also Docket

No. 12, at 8:7-10.

Cas. Co., 425 F.3d 689, 694 (9th Cir. 2005). Thus, notice of removability is determined

by the “four corners of the applicable pleadings, not through subjective knowledge or a

duty to make further inquiry.” Id.; see also Phillips & Stevenson, RUTTER GROUP

PRAC. GUIDE, FEDERAL CIV. PRO. BEFORE TRIAL (The Rutter Group 2020)

(“Phillips & Stevenson”), ¶ 2:3231, at 2D-152. In fact, a leading practice guide indicates

that the grounds for removal must be “unequivocally clear and certain” to start the 30-day

period running. See Phillips & Stevenson ¶ 2:3232, at 2D-153. Uncertainty can concern

either citizenship issues or amount-in-controversy issues. See id. ¶¶ 2:3238-3245, at 2D-

154; id. ¶ 2:3247.2, at 2D-156. What this means, among other things, is that a defendant

has no duty to consult its own financial records – as opposed to the complaint’s

allegations – to identify a representative valuation of claims. See Kuxhausen v. BMW

Fin’l Servs. NA LLC, 707 F.3d 1136, 1141 (9th Cir. 2013); see also Kenny v. Wal-Mart

Stores, Inc., 881 F.3d 786, 790-91 (9th Cir. 2018). What this also can mean is that even

if a removing-defendant successfully satisfies its preponderance-of-the-evidence burden

of demonstrating removability, this does not necessarily mean that removability appeared

on the face of a plaintiff’s state-court complaint. See Phillips & Stevenson ¶ 2:3234, at

2D-153 (“If defendant knows such grounds [for removal] exist (e.g., existence of

diversity of citizenship) [despite those grounds not being reflected on the face of the

complaint], defendant may file a notice of removal at the outset setting forth a ground for

removal.”); see also Kuxhausen, 707 F.3d at 1141 (“This principle helps avoid a ‘Catch-

22’ for defendants desirous of a federal forum. By leaving the window for removal open,

it forces plaintiffs to assume the costs associated with their own indeterminate

pleadings.”).

Here, Plaintiff’s Complaint did not sufficiently allege the citizenship of any of the

parties. It simply asserted that Plaintiff is a “resident” of California, see Complaint ¶¶ 1,

3, but residence is not the same as citizenship. See Kanter v. Warner-Lambert Co., 265

F.3d 853, 857 (9th Cir. 2001); Kantor v. Wellesley Galleries, Ltd., 704 F.2d 1088, 1090

(9th Cir. 1983). It also alleged that YLA was a “New Work” – presumably intending to

signify New York – corporation and that Yusen Japan was a “California Company,”

without explaining what – state of incorporation or something else – makes it such (in

Plaintiff’s view, at least). See Complaint ¶¶ 1, 7-8. At best, this alleges only partial

citizenship as to YLA, but does not clearly reflect either of the forms of dual citizenship

of a corporation for Yusen Japan. These citizenship allegations, in sum, do not reflect

even the minimal diversity necessary for CAFA jurisdiction. As a result, the Court need

not even analyze whether or not the Complaint, on its face, reflected the minimum

amount-in-controversy (although, presumably, even Plaintiff believes it did not in light of

his argument – discussed further infra – that Yusen Japan had to resort to “flawed

assumptions and speculative allegations” and “cursory and incomplete calculations” in

order to demonstrate an amount sufficient for removal).

As a result, Plaintiff’s argument that removal was untimely here is simply

incorrect. The Court cannot grant his motion to remand on that basis.

With respect to the “Local Controversy” exception to CAFA, Plaintiff – who

bears the burden on this issue, see Singh v. Am. Honda Fin. Corp., 925 F.3d 1053, 1067

(9th Cir. 2019) – would have to prove that:

(1) more than two-thirds of the proposed plaintiff class(es) are citizens of

the state in which the action was originally filed, (2) there is at least one

in-state defendant against whom ‘significant relief’ is sought and ‘whose

alleged conduct forms a significant basis for the claims asserted’ by the

proposed class, (3) the ‘principal injuries’ resulting from the alleged

conduct of each defendant were incurred in the state of filing, and (4) no

other class action ‘asserting the same or similar factual allegations against

any of the defendants’ has been filed within three years prior to the present

action.

Kendrick v. Conduent State & Loc. Sols., Inc., 910 F.3d 1255, 1260 (9th Cir. 2018)

(quoting 28 U.S.C. § 1332(d)(4)(A)). Plaintiff fails this obligation in at least two

respects.

First, Yusen Japan is the only defendant Plaintiff tries to prove is an “in-state

defendant,” but he attempts to prove that citizenship under a no-longer-applicable

standard for determining a corporation’s principal place of business. See Docket No. 12,

at 10:13-11:9 (relying on “substantial predominance” test and Tosco Corp. v.

Communities for a Better Environment, 236 F.3d 495, 500 (9th Cir. 2001). A

corporation’s principal place of business is to be adjudged according to the test the

Supreme Court set forth in Hertz Corp. v. Friend, 559 U.S. 77 (2010). See, e.g., Aliga

Online, Inc. v. Discover Bank, No. 2:21-cv-01721-FLA (MRWx), 2021 WL 1406616, *3

(C.D. Cal. Apr. 14, 2021). Given Plaintiff’s failure to even address that test, he has not

satisfied the second required element of the Local Controversy exception (even ignoring

Yusen Japan’s repeated insistence that it is a citizen only of Japan, and not of California).

Then, even assuming that Plaintiff has satisfied the first and third required elements for

the Local Controversy exception, he has not even addressed the fourth required element.

See Docket No. 12, at 9:13-11:26. As a result, Plaintiff has not successfully

demonstrated that any CAFA exception applies here. See also Footnote 1, supra.

With respect to the issue of the amount-in-controversy, Plaintiff is correct that

Yusen Japan bears the burden, and that it must demonstrate the amount-in-controversy by

a preponderance of the evidence. But the Court disagrees with Plaintiff that Yusen Japan

has done so only via “flawed assumptions and speculative allegations” or “cursory and

incomplete calculations.” Docket No. 12, at 11:14-15, 14:12-14.

Yusen Japan identified the number of YLA’s non-exempt employees in California

during the relevant time period. See Notice of Removal ¶ 31. It also identified the

number of former employees in the putative class. See id. ¶ 32. It took the number of

former employees and multiplied that number by the average hourly rate for those

employees and by the other figures (8 hours and 30 days) relevant to a waiting-time

penalties claim under California’s Labor Code to determine that Plaintiff’s sixth claim

alone puts in-controversy over $1.8 million. See id.

Yusen Japan employed similar reasonable calculations to conclude that Plaintiff’s

eighth claim for relief put in-controversy an additional over-$1.9 million figure. It used

Plaintiff’s allegation that the defendants “routinely” failed to provide proper wage

statements, used the relevant figures under the Labor Code ($50 or $100, with a $4,000

cap), the one-year statute of limitations, and the fact that approximately 493 employees

would have received improper wage statements for each of the 58 pay periods over the

applicable one-year period (apparently without even attempting to include any employees

who received wage statements for fewer than the 58 pay periods) to reach that figure. See

id. ¶ 33. Thus, on the sixth and eighth claims for relief alone, Yusen Japan reasonably

calculated the amount-in-controversy as upwards of $3.7 million.

Even if the Court were to take issue with the assumptions Yusen Japan made in its

Notice of Removal with regard to Plaintiff’s claims for missed meal periods, missed rest

periods, unpaid overtime, and unpaid minimum wages, see id. ¶¶ 34-38, Yusen Japan

also noted that Plaintiff seeks attorney’s fees. That figure must also be included in the

amount-in-controversy. See Fritsch v. Swift Transp. Co. of Ariz., LLC, 899 F.3d 785,

788, 794 (9th Cir. 2018). Even if the Court were to only assume a 25% figure for an

attorney’s fee award in this case, and even if that figure were only applied to the amount-

in-controversy the Court believes Yusen Japan has reasonably established with respect to

Plaintiff’s sixth and eighth claims for relief, somewhere in the neighborhood of $925,000

would be added to the amount in question, bringing the total – on just the Complaint’s

sixth and eighth claims and the request for attorney’s fees – above $4.6 million.

Yusen Japan estimated the amount-in-controversy for Plaintiff’s missed meal

periods, missed rest periods, unpaid overtime, and unpaid minimum wages claims as

above $2.2 million. See id. ¶¶ 34-37. Even if the Court believed that Yusen Japan had

over-estimated those amounts because of the inexact nature of Plaintiff’s Complaint’s

allegations concerning any relevant violation rates, only roughly $400,000 would have to

be at issue as a result of those four claims3 (less than 20% of the figure Yusen Japan

proposes) for the total amount-in-controversy in the case to exceed $5,000,000. The

Court is comfortable in concluding that at least that amount is at issue using reasonable

assumptions about violation rates (and the consequential calculations under the claims in

question, as outlined in the Notice of Removal) given Plaintiff’s allegations. See

generally Arias v. Residence Inn by Marriott, 936 F.3d 920, 922 (9th Cir. 2019).

For the foregoing reasons, Plaintiff’s argument that the case should be remanded

because Yusen Japan has not sufficiently demonstrated the minimum amount-in-

controversy must be rejected. As such, each of the three reasons Plaintiff identifies as a

basis for remand fails. The Court therefore denies Plaintiff’s motion to remand.

B. Motion Two – Dismissal Yusen Japan

As noted above, Yusen Japan has moved to dismiss on the grounds that the Court

lacks personal jurisdiction over it, that the Summons with which it was (purportedly)

served was deficient, and that the service or process was improper. In the alternative to a

dismissal, Yusen Japan asks that the Court quash the service.

3 As Yusen Japan further notes in its Opposition, this still does not take into account any estimated amount-

in-controversy with respect to Plaintiff’s claims for Failure to Timely Pay Wages, Failure to Maintain

Required Records, or Failure to Indemnify Employees for Necessary Expenditures. See Docket No. 13, at

4-8.

Plaintiff’s response, insofar as Motion Two is concerned, is limited to: 1) asking

the Court to take the motion off-calendar because of his conviction that he will prevail on

Motion One and 2) if the Court “somehow determines that it has jurisdiction over this

matter” (presumably referring to the question of whether it should or should not be

remanded) and that service of process was not sufficient, to grant Plaintiff “leave to

serve” Yusen Japan. See Docket No. 15, at 2:11-14, 4:2-4, 5:13-17. He does not actually

make any arguments that the Summons he purportedly served on Yusen Japan was

sufficient, that his service of process on Yusen Japan was proper, or any argument at all

directed to the question of whether the Court has personal jurisdiction over Yusen Japan.

Because the Court has already “somehow determine[d]” that Plaintiff’s motion to remand

does not have even a slight chance of succeeding, Plaintiff’s failure to even address the

question of personal jurisdiction when Yusen Japan properly raised the issue by way of

motion means that the Court ultimately will not even need to consider the sufficiency of

the Summons Plaintiff purports to have served or the sufficiency of the service of process

on Yusen Japan at all.

A few principles demonstrate the effect of Plaintiff’s failure to address the

question of personal jurisdiction here. First, when a defendant moves to dismiss for lack

of personal jurisdiction, the plaintiff bears the burden of demonstrating that the court has

jurisdiction. See In re W. States Wholesale Natural Gas Antitrust Litig., 715 F.3d 716,

741 (9th Cir. 2013); Sher v. Johnson, 911 F.2d 1357, 1361 (9th Cir. 1990). More-

specifically, to establish a case for specific jurisdiction4 based upon “minimum contacts,”

Plaintiff bears the burden of demonstrating the “purposeful availment/direction” factor

and the “arising out of” factor well-recognized as part of that analysis. See Boschetto v.

Hansing, 539 F.3d 1011, 1016 (9th Cir. 2008). Again, Plaintiff made no effort to address

either of these factors in his Opposition, and consequently no effort to demonstrate the

existence of personal jurisdiction.

Second, while uncontroverted allegations going to the question of personal

jurisdiction are accepted as true, where those allegations are contradicted by affidavit or

declaration the defendant’s evidence is credited as true unless the plaintiff submits

4 Although Yusen Japan presented arguments for why it was not subject to general personal jurisdiction in

California, Plaintiff made no attempt to address that issue in his Opposition. He has therefore forfeited any

chance to do so.

conflicting evidentiary material (in which case the plaintiff’s account is accepted as true).

See Mavrix Photo, Inc. v. Brand Techs., Inc., 647 F.3d 1218, 1223 (9th Cir. 2011) (“The

plaintiff cannot ‘simply rest on the bare allegations of its complaint,’ but uncontroverted

allegations in the complaint must be taken as true. ‘[W]e may not assume the truth of

allegations in a pleading which are contradicted by affidavit,’ but we resolve factual

disputes in the plaintiff’s favor.”) (omitting internal citations) (quoting Schwarzenegger

v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir. 2004) and Data Disc, Inc. v. Sys.

Tech. Assocs., Inc., 557 F.2d 1280, 1284 (9th Cir. 1977)). Here, absent any argument

revealing any other basis for purposeful availment or purposeful declaration, the Court

can only guess that Plaintiff would rely on his allegations that Yusen Japan employed

Plaintiff and the putative class members in California and/or the boilerplate allegation

that Yusen Japan and YLA were in an alter ego or principal-agent relationship, among

others.

But Yusen Japan has provided evidence that Yusen Japan “never employed

Plaintiff and the putative class members.” See Declaration of Gerald Hofmann in

Support of Yusen Logistics Co., Ltd.’s Motion to Dismiss Action Against Yusen

Logistics Co., Ltd. Pursuant to Rule 12(b)(2), (4), and (5), or in the Alternative, to Quash

Service of Summons and Complaint (“Hofmann Decl.”), Docket No. 11-2, ¶ 3;

Declaration of Yoshikazu Hirano in Support of Yusen Logistics Co., Ltd.’s Motion to

Dismiss Action Against Yusen Logistics Co., Ltd. Pursuant to Rule 12(b)(2), (4), and (5),

or in the Alternative, to Quash Service of Summons and Complaint (“Hirano Decl.”),

Docket No. 11-3, ¶ 4. Instead, YLA did. See Hofmann Decl. ¶ 3. The evidence also

indicates that “the employment duties, policies, and practices pertaining to Plaintiff and

the putative class were controlled by YLA,” never Yusen Japan. Hofmann Decl. ¶ 4; see

also Hirano Decl. ¶ 5. The submitted evidence also indicates that Yusen Japan does not

even conduct business in California, let alone have any employees there. See Hirano

Decl. ¶ 3.

Crucially, Plaintiff presented no evidence of his own in connection with Yusen

Japan’s personal jurisdiction arguments. As such, this Court is forced to credit the factual

assertions made in Yusen Japan’s evidence, including – most importantly – that YLA and

Yusen Japan were not the joint employers of Plaintiff and the putative class members.

This leaves only Plaintiff’s boilerplate allegations regarding alter ego, principal-

agent, etc., see Complaint ¶¶ 11, 13, which Yusen Japan’s evidentiary submissions did

not – directly, at least – address. But a leading practice guide supports the conclusion

that only well-pled facts, not mere conclusory allegations, must be accepted as true in the

context of a personal jurisdiction challenge. See Phillips & Stevenson ¶ 9:117, at 9-48

(quoting Wenz v. Memery Crystal, 55 F.3d 1503, 1505 (10th Cir. 1995)). The Ninth

Circuit appears to agree. See Williams v. Yamaha Motor Co. Ltd., 851 F.3d 1015, 1025

n.5 (9th Cir. 2017) (declining to “credit” agency allegation as basis for specific

jurisdiction because it was “a conclusory legal statement unsupported by any factual

assertion regarding . . . control . . . (or regarding any other aspect of the parent-subsidiary

relationship)”). This Court does too. See also Colt Studio, Inc. v. Badpuppy Enter., 75

F.Supp.2d 1104, 1111 (C.D. Cal. 1999).

For the reasons just-explained, Plaintiff’s lack of attention to this issue results in

Yusen Japan demonstrating that there is no basis for specific (or general) personal

jurisdiction over it in this forum. As a result, the Court need not reach the issues

pertinent to the sufficiency of the Summons and the purported service upon Yusen Japan.

The Court grants Motion Two, and dismisses Yusen Japan from the action.

C. Motion Three – Dismissal YLA

1. Applicable Legal Standards

Under Rule 12(b)(6), a court must (1) construe the complaint in the light most

favorable to the plaintiff, and (2) accept all well-pleaded factual allegations as true, as

well as all reasonable inferences to be drawn from them. See Sprewell v. Golden State

Warriors, 266 F.3d 979, 988 (9th Cir.), amended on denial of reh’g, 275 F.3d 1187 (9th

Cir. 2001); Pareto v. F.D.I.C., 139 F.3d 696, 699 (9th Cir. 1998). The court need not

accept as true “legal conclusions merely because they are cast in the form of factual

allegations.” Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir.

2003).

Dismissal pursuant to Rule 12(b)(6) is proper only where there is either a “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);

Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1121-22 (9th Cir. 2008); see

also Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 561-63 (2007) (dismissal for failure to

state a claim does not require the appearance, beyond a doubt, that the plaintiff can prove

“no set of facts” in support of its claim that would entitle it to relief). However, a

plaintiff must also “plead ‘enough facts to state a claim to relief that is plausible on its

face.’” Johnson, 534 F.3d at 1122 (quoting Twombly, 550 U.S. at 570); see also William

O. Gilley Enters., Inc. v. Atlantic Richfield Co., 588 F.3d 659, 667 (9th Cir. 2009)

(confirming that Twombly pleading requirements “apply in all civil cases”). A complaint

does not “suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual

enhancement.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S.

at 556). “A claim has facial plausibility when the plaintiff pleads factual content that

allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Id. In its consideration of the motion, the court is generally limited

to the allegations on the face of a complaint (including any documents attached thereto),

matters which are properly judicially noticeable and “documents whose contents are

alleged in a complaint and whose authenticity no party questions, but which are not

physically attached to the pleading.” See Lee v. City of Los Angeles, 250 F.3d 668, 688-

89 (9th Cir. 2001); Branch v. Tunnell, 14 F.3d 449, 453-54 (9th Cir. 1994), overruling on

other grounds recognized in Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th Cir.

2002).

“A court can only strike a statement in a pleading under Rule 12(f) if the

statement is ‘(1) an insufficient defense; (2) redundant; (3) immaterial; (4) impertinent; or

(5) scandalous.’” In re Mortgages Ltd., 771 F.3d 623, 630 (9th Cir. 2014) (quoting

Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 973-74 (9th Cir. 2010)). In

Whittlestone, the Ninth Circuit read the terms “immaterial” matter as “that which has no

essential or important relationship to the claim for relief or the defenses being plead” and

“impertinent” matter as “consist[ing] of statements that do not pertain, and are not

necessary, to the issues in question.” 618 F.3d at 974 (quoting Fantasy, Inc., 984 F.2d at

1527). Under Whittlestone, where material “relates directly to the plaintiff’s underlying

claim for relief” it cannot be considered “immaterial.” Id. Because of its similar

application, the Court believes that the same general rule should apply to a determination

of whether matter is “impertinent.” Where there is “any doubt as to whether the

allegations might be an issue in the action, courts will deny” a Rule 12(f) motion. In re

2TheMart.com, Inc. Secs. Litig., 114 F.Supp.2d 955, 965 (C.D. Cal. 2000).

2. Overtime Wage and Minimum Wage Claims

YLA argues that Plaintiff’s overtime and minimum wage claims are

insufficiently-factual, consisting simply of conclusions. Although this Court does not

necessarily agree with that approach, instead finding it to ask for more than what Rule 8

requires (and approaching the type of detail called for by, for example, Rule 9(b)), there

is Ninth Circuit precedent that supports YLA’s view to a certain extent. That precedent

establishes a requirement that Plaintiff identify a “given workweek” in which he qualified

for overtime and was not paid. See Landers v. Quality Commc’ns, Inc., 771 F.3d 638

(9th Cir. 2014) (affirming dismissal of Fair Labor Standards Act overtime claim where

the plaintiff failed to identify a “given workweek” in which he qualified for overtime and

was not paid).5 While it is true that Landers involved a federal overtime claim under the

Fair Labor Standards Act (“FLSA”) – a statute not at issue here – the issue in question

here is what is needed to satisfy federal pleading standards, which apply to both an FLSA

claim and the state law overtime and minimum wage claims in this action. See also Tan

v. GrubHub, Inc., 171 F.Supp.3d 998, 1006 (N.D. Cal. 2016) (“Although Landers

discussed FLSA claims, its reasoning applies to California Labor Code claims as well.”).

Although Landers instructed courts to “keep[] in mind that detailed facts are not

required,” 771 F.3d at 641, and this Court might question the propriety of the standard

the Ninth Circuit arrived at,6 there is no question what Landers requires (especially

considering its discussion of First, Second and Third Circuit decisions it agreed with),

and that Plaintiff’s allegations fall short of it. See id. at 642-46; id. at 646 (rejecting, as

insufficient, allegations including the statement that “the named plaintiff…worked more

than 40 hours per week for the defendants, and the defendants willfully failed to make

said overtime and/or minimum wage payments”). Plaintiff “must allege” that there is at

5 Plaintiff’s Opposition does not so much as mention Landers. See Docket No. 14.

6 Landers has been cited in two published Ninth Circuit decisions – on one of those two occasions, in

dissent – since its issuance in 2014. See Whitaker v. Tesla Motors, Inc., 985 F.3d 1173, 1176 (9th Cir.

2021); Scalia v. Dep’t of Transp. & Pub. Facilities, 985 F.3d 742, 758 (9th Cir. 2021) (Christen, J.,

dissent). Neither of those decisions involved wage-and-hour-type claims, and neither examined Landers in

any detail, but simply cited the decision once each.

least one workweek/workday in which he was not properly paid overtime. Id. at 645.7

He has not done so, see Complaint ¶¶ 25-29, and his overtime claim must therefore be

dismissed, with leave to amend.8

The Court believes the same approach should be adopted with respect to

Plaintiff’s minimum wage claim, for which he also lacks at least this detail. See id. ¶¶

30-33. There is no principled reason to draw a distinction between these two types of

claims under the Landers approach. Indeed, though much of the language surrounding

Landers’s “given workweek” holding directly related only to an overtime FLSA claim,

the Ninth Circuit’s decision addressed both overtime and minimum wage claims. See

771 F.3d at 640-41 (“[P]ost-Twombly and Iqbal, we review Landers’s complaint to

determine whether the allegations plausibly state a claim that Quality failed to pay

minimum wages and overtime wages, keeping in mind that detailed facts are not

required.”); id. at 645 (“Applying that standard to the pleadings in this case, Landers

failed to state a claim for unpaid minimum wages and overtime wages. The complaint

did not allege facts showing that there was a given week in which he was entitled to but

denied minimum wages or overtime wages.”); id. at 646 (“[A]t a minimum the plaintiff

must allege at least one workweek when he worked in excess of forty hours and was not

paid for the excess hours in that workweek, or was not paid minimum wages.”).

YLA goes further, however, arguing that Plaintiff “provides absolutely no

explanation of the circumstances surrounding these alleged hours worked.” Docket No.

10, at 6:26-28. It also takes Plaintiff to task for not alleging “any specific information

regarding the amount of time he worked, . . . or the type of work he was asked or required

to perform.” Id. at 7:27-8:1; see also Docket No. 17, at 4:1-3 (stating, in Reply brief, that

Plaintiff should allege “how, under what circumstances or when [he] was allegedly

7 The Ninth Circuit also indicated that “[a] plaintiff may establish a plausible claim by estimating the length

of her average workweek during the applicable period and the average rate at which she was paid, the

amount of overtime wages she believes she is owed, or any other facts that will permit the court to find

plausibility.” Landers, 771 F.3d at 645. But the court still continued on to indicate that the “given

workweek” allegation was a requirement. See id. at 645-46.

8 Even if the Court were to join the courts that have understood Landers as not requiring identification of a

particular calendar week, so long as other details leading to a plausible claim are provided, Plaintiff has not

included those details here. See Tan v. GrubHub, Inc., 171 F.Supp.3d 998, 1008 (N.D. Cal. 2016)

(discussing cases adopting that approach).

required to work off-the-clock, or what work [he] purportedly performed when required

to do so”).9 Beyond what Landers requires, this Court does not believe that Rule 8

requires Plaintiff to plead these “circumstances” or the “specific information” YLA

would like to see included. See, e.g., Landers, 771 F.3d at 645 (“[L]ike the other circuit

courts that have ruled before us, we decline to make the approximation of overtime hours

the sine qua non of plausibility for claims brought under the FLSA.”).

Plaintiff’s third and fourth claims are dismissed with leave to amend due to their

failure to include what Landers requires.

3. Meal Period and Rest Period Claims

Although, unlike his overtime wage and minimum wage claims, Plaintiff’s meal

and rest period claims – his first and second claims – have not been the subject of similar

published Ninth Circuit authority, district courts have commonly-concluded that the

requirements set forth in Landers are equally-applicable to meal period and rest

break/period claims. See, e.g., Shann v. Durham Sch. Servs., L.P., 182 F.Supp.3d 1044,

1048 (C.D. Cal. 2016); Wood v. N. Am. Van Lines, Inc., No. 8:20-cv-02092-JLS-ADS,

2021 WL 3134203, *4 (C.D. Cal. July 23, 2021); Avina v. Marriott Vacations Worldwide

Corp., No. SACV 18-00685 JVS (JPRx), 2018 WL 6844713, *3 (C.D. Cal. Oct. 15,

2018); Franke v. Anderson Merchandisers LLC, No. CV 17-3241 DSF (AFMx), 2017

WL 3224656, *7 (C.D. Cal. July 28, 2017); Daugherty v. SolarCity Corp., No. C 16-

05155 WHA, 2017 WL 386253, *6-7 (N.D. Cal. Jan. 26, 2017); Guerrero v. Halliburton

Energy Servs., Inc., No. 1:16-CV-1300-LJO-JLT, 2016 WL 6494296, *6 (E.D. Cal. Nov.

2, 2016); Raphael v. Tesoro Refining & Mktg. Co. LLC, No. 2:15-cv-02862-ODW (Ex),

2015 WL 4127905, *3 (C.D. Cal. July 8, 2015). YLA correctly argues that Plaintiff’s

claims of this type are devoid of any detail, simply reflecting assertions that the

defendants “required, permitted or otherwise suffered [Plaintiff] to take less than the 30-

minute meal period, or to work through them” and “failed to provide rest periods” to

Plaintiff. Complaint ¶¶ 17, 22; see also id. ¶¶ 4, 12.

These claims therefore suffer from the same Landers-based deficiency as do

9 To the extent YLA is – correctly – concerned about the lack of factual allegations concerning Plaintiff’s

theory of “joint employment” by YLA and Yusen Japan, see Complaint ¶ 11, that shortcoming is made

moot by the Court’s decision, supra, to dismiss Yusen Japan for lack of personal jurisdiction (and by

YLA’s admission that it employed Plaintiff, see Hofmann Decl. ¶ 3).

Plaintiff’s overtime and minimum wage claims. Beyond what Landers requires,

however, the Court rejects YLA’s argument that Plaintiff must “include allegations

concerning [Plaintiff’s] shift schedule, and what specific policies and practices were used

to manage [him], and whether such policies and practices were company-wide,” “the

circumstances in which the alleged violation occurred,” “how [the defendants] actually

went about coercing [Plaintiff] to forego breaks,” “facts surrounding the alleged tactics”

that resulted in the missed periods, or “about his workday and how breaks were allegedly

not provided.” Docket No. 10, at 5:4-22. In this Court’s view, this calls for more facts

than are necessary to make relatively straight-forward and common claims plausible.

Because the Court concludes Plaintiff must comply with Landers with respect to

these two claims, they are dismissed with leave to amend.

4. Failure to Indemnify

Continuing on its theme, YLA also takes issue with the lack of detail it would like

to see present in Plaintiff’s ninth claim, for failure to indemnify employees for necessary

expenditures incurred in discharge of duties. Specifically, YLA notes that:

[n]owhere does Plaintiff identify how and why he was required to incur

the alleged business-related expenses and costs, whether they were

incurred in direct consequence of his discharge of his duties, or in

obedience to the direction of Defendants, that the alleged expenses and

costs were necessary, or that Defendants were aware of the alleged

expenses and costs.

Docket No. 10, at 8:19-24. The elements for this claim are that Plaintiff: (1) made

expenditures or incurred losses, (2) those expenditures/losses were incurred in direct

consequence of Plaintiff’s discharge of his duties, and (3) the expenditures or losses were

necessary. See USS-POSCO Indus. v. Case, 244 Cal.App.4th 197, 205 (2016) (quoting

Cassady v. Morgan, Lewis & Bockius LLP, 145 Cal.App.4th 220, 230 (2006)); Nicholas

Labs., LLC v. Chen, 199 Cal.App.4th 1240, 1249 (2011); see also Arroyo v. Int’l Paper

Co., No. 17-cv-06211-BLF, 2020 WL 887771, *15 (N.D. Cal. Feb. 24, 2020); Tan, 171

F.Supp.3d at 1005 (“Section 2802 claims are sufficiently pled where the complaint

identifies the particular expenses that were not reimbursed and affirmatively alleges that

the expenses were part of the plaintiff’s job duties.”).

In light of the recognized elements for such a claim, “how and why” Plaintiff

incurred the expenditures he identifies need not be pled except to the extent it is required

to show that such expenditures were incurred in direct consequence of his discharge of

his duties (or obedience to the directions of YLA). The recognized elements similarly do

not require that Plaintiff allege facts showing that YLA was “aware of the alleged

expenses and costs.” Compliance with YLA’s expectations in these regards, therefore, is

not necessary in order to make Plaintiff’s claim plausible under Twombly and Iqbal.

However, the Court agrees that Plaintiff has not pled facts supporting a

conclusion that the expenditures in question were incurred in direct consequence of

Plaintiff’s discharge of his duties or that those expenditures were necessary. See

Complaint ¶ 55. In at least those regards, therefore, the claim must be amended if it is to

survive the pleadings. Therefore, Plaintiff’s ninth claim is dismissed, with leave to

amend.

5. The Remaining Claims

With respect to Plaintiff’s remaining claims, YLA merely argues that because

those claims are entirely-derivative of Plaintiff’s other claims (which YLA believes must

be dismissed), these claims likewise should be dismissed. Plaintiff does not appear to

specifically-respond to YLA’s assertion that the remaining claims are derivate (aside

from expressly acknowledging that at least his Section 17200 claim is, see Docket No.

14, at 12:23).

The Court agrees with YLA. Because the remaining claims are apparently

derivative of the five claims specifically-discussed supra, and because the Court has

concluded each of those five claims must be amended in order to survive, the remaining

claims must be dismissed as well, though of course with leave to amend.

6. Striking Class Allegations

Finally, YLA believes that the Court should dismiss or strike the class allegations

from Plaintiff’s Complaint because, in its view, “a class action complaint must allege

facts plausibly demonstrating that putative class members had work experiences similar

to Plaintiff.” Docket No. 10, at 1:21-23. In this Court’s view, that is not an appropriate

application of either Rule 12(b)(6) or Rule 12(f). Rule 12(b)(6) is directed at the

sufficiency of a plaintiff’s claims, not his ability to state facts regarding the claims of

others or his ability to state facts supporting the findings necessary under Rule 23 for

class certification. Under Rule 12(f), the concerns YLA identifies do not make Plaintiff’s

class-related allegations an “insufficient defense,” “redundant,” “immaterial,”

“impertinent” or “scandalous.”

To the extent other district courts have taken a different approach to this question,

this Court does not join them. If Plaintiff’s proposed class is too overbroad and/or dis-

similar, he will struggle to achieve certification at the appropriate stage.

7. Conclusion as to Motion Three

For the foregoing reasons, the Court would grant Motion Three, with leave to

amend, with respect to each of the ten claims for relief pled in the Complaint. However,

it would deny Motion Three insofar as it seeks to dismiss or strike the class-related

allegations.

III. Conclusion as to All Motions

The Court denies Plaintiff’s motion to remand. The Court grants Yusen Japan’s

motion to dismiss on personal jurisdiction grounds and does not address the other issues

raised therein. Finally, the Court grants YLA’s motion to dismiss each of the claims

asserted in the Complaint, with leave to amend, but denies that motion to the extent it

seeks to either dismiss or strike Plaintiff’s class-related allegations.