Whitfield

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

JERMAINE WHITFIELD, Case No. 26-cv-01300-RFL

Plaintiff,

ORDER GRANTING IN PART AND

v. DENYING IN PART MOTION TO

DISMISS

LEVI STRAUSS & CO,

Re: Dkt. No. 43

Defendant.

Plaintiff Jermaine Whitfield brings this putative class and collective action against

Defendant Levi Strauss & Co., asserting various wage and hour claims under Nevada state law

and the Fair Labor Standards Act (“FLSA”). (Dkt. No. 31.) Levi Strauss moves to dismiss the

operative complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).

(Dkt. No. 43.) For the reasons that follow, the motion is GRANTED IN PART AND DENIED

IN PART. This order assumes the parties’ familiarity with the facts of the case, the applicable

legal standards, and both sides’ arguments.

Overtime Claim. Whitfield’s overtime claim under N.R.S. 608.018 is preempted by

section 301 of the Labor Management Relations Act (“LMRA”). The claim is dismissed because

Whitfield did not follow the grievance procedures provided in the collective bargaining

agreements (“CBAs”) governing his employment. N.R.S. 608.018 expressly provides that it

does not apply to “[e]mployees covered by collective bargaining agreements which provide

otherwise for overtime.” N.R.S. 608.018(3)(e). Here, the Henderson Distribution Center CBA

requires overtime compensation for certain hours not covered by N.R.S. 608.018, and the CBA

provides for overtime wage rates with different multipliers.1 (Dkt. No. 44-2 at 25.) Because the

Henderson CBA provides overtime in a “different way or manner” than N.R.S. 608.018, N.R.S.

608.018 does not apply to Whitfield. Martel v. HG Staffing, LLC, 138 Nev. 602, 611 (2022).

Even if the CBA requires state law to fill in the meaning of its terms (for instance, an employee’s

“rate of pay”), Whitfield’s overtime claim would still be one to enforce his rights under the CBA,

not a claim brought under N.R.S. 608.018, which exempts Whitfield from its coverage due to his

status as an employee covered by a CBA otherwise providing for overtime. Accordingly,

Whitfield’s overtime claim exists “solely as a result of [a] CBA” and is therefore preempted by

the LMRA. Curtis v. Irwin Indus., Inc., 913 F.3d 1146, 1155 (9th Cir. 2019).

At the hearing on the motion, Whitfield’s counsel agreed that the overtime claim must be

dismissed if it is preempted by the LMRA given the CBAs’ mandatory grievance procedures.

(Dkt. No. 44-2 at 30–33.) Therefore, the motion to dismiss this claim is granted. At the hearing,

Whitfield’s counsel indicated that if the claim were to be dismissed, Whitfield would request

leave to amend to add allegations that the CBAs’ grievance procedures violated the unions’ duty

to fairly represent him. Because the record does not establish that such an amendment would be

futile, dismissal is with leave to amend.

Waiting Time Claim. Whitfield’s waiting time claim under Nevada state law is not

preempted by the LMRA. Levi Strauss argues that the waiting time claim requires interpreting

the CBAs, observing that the CBAs contain provisions concerning, among other things, shift

differentials, wage rates, attendance, rest periods, and lunch periods. (Dkt. No. 43 at 13–14.)

But the waiting time claim does not require interpreting the CBAs because there is no “active

dispute over the meaning of contract terms.” Alaska Airlines Inc. v. Schurke, 898 F.3d 904, 921

(9th Cir. 2018) (internal quotation marks omitted). Despite prompting at the hearing, Levi

1 Levi Strauss’s unopposed request (Dkt. No. 44) for judicial notice of the CBAs between (a)

Workers United and Levi Strauss and (b) Levi Strauss’s Henderson Distribution Center, Workers

United, and Western States Regional Joint Board Workers United, SEIU Local 711 is granted.

Fed. R. Evid. 201(b); see also Hernandez v. Sysco Corp., No. 16-cv-06723-JSC, 2017 WL

1540652, at *2 (N.D. Cal. Apr. 28, 2017).

Strauss’s counsel could not identify any provisions in the CBAs that discuss whether Whitfield

and other employees are entitled to payment for time spent waiting to swipe in or, if they came in

early to avoid waiting, spent working before their shifts officially started. The provisions to

which Levi Strauss points instead bear on the extent of Whitfield’s damages—i.e., the amount of

pay to which he is entitled for waiting time—and “the mere need to look to the collective-

bargaining agreement for damages computation” is an insufficient basis to find a claim

preempted by the LMRA. See Livadas v. Bradshaw, 512 U.S. 107, 125 (1994) (internal

quotation marks omitted). The motion to dismiss this claim is denied.

Failure to Timely Pay All Wages Claim. At the hearing on this motion, counsel for Levi

Strauss agreed that if Whitfield’s waiting time claim survives LMRA preemption, so too does the

claim for failure to timely pay all wages due. Accordingly, the motion to dismiss this claim is

denied.

FLSA Claim. The operative complaint states an overtime claim under the FLSA on

behalf of a national collective. Levi Strauss argues only that the operative complaint fails to

plausibly allege that the timekeeping mechanics and waiting time/swipe-in processes at the

Henderson distribution center were also in effect at the distribution centers in Kentucky and

Mississippi. (Dkt. No. 43 at 16–19.) Accordingly, Levi Strauss argues that the scope of the

collective should be limited to the Henderson distribution center. That challenge is not properly

brought as a Rule 12(b)(6) motion to dismiss. A “12(b)(6) motion must seek to dispose of an

entire claim,” not a portion of a claim. Kan v. Gen. Motors LLC, No. 23-cv-01731-JLS-RAO,

2023 WL 11197090, at *1 (C.D. Cal. Nov. 7, 2023). Instead, a challenge to the scope of the

FLSA collective is more properly addressed in adjudicating a motion for notice to the collective,

where Whitfield would be entitled to provide evidence beyond the allegations of the complaint

supporting a common practice extending beyond the Henderson location. Cf. Miller v. Nature’s

Path Foods, Inc., No. 23-cv-05711-JST, 2024 WL 4177940, at *9 (N.D. Cal. Sept. 11, 2024)

(declining to strike nationwide class allegations because the issue is more properly addressed at

class certification). Accordingly, the motion to dismiss this claim is denied.

Conclusion. For the foregoing reasons, the motion to dismiss Whitfield’s overtime claim

under Nevada state law is granted, and the motion to dismiss all other claims is denied.

Dismissal is with leave to amend, as described above. If Whitfield wishes to file a Second

Amended Complaint correcting the deficiencies identified above, he shall do so by May 11,

2026. If no such amended complaint is filed by that date, the claims that were dismissed in this

Order will remain dismissed, and the case will proceed on the surviving claims only.

IT IS SO ORDERED.

Dated: April 20, 2026

RITA F. LI

United States District Judge