Free Stipulation - District Court of California - California

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 SAN FRANCISCO DIVISION 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff Daniel Keating-Traynor, by and through his attorney, Daniel Berko, and Defendant Comcast Inc. ("Comcast") by and through its attorneys Morgan, Lewis and Bockius LLP, hereby stipulate as follows: /// /// ///
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DANIEL KEATING-TRAYNOR on behalf of himself and all others similarly situated; Plaintiffs, vs. AC SQUARE INC.; COMCAST INC.; AFSHIN GHANEH; ANDREW BAHMANYAR; AND DOES 1-60 INCLUSIVE; Defendants.

Case No. CV-08-2907-MHP STIPULATION AND [PROPOSED] ORDER TO ALLOW COMCAST INC. TO FILE ITS MOTION TO DISMISS PLAINTIFF'S COMPLAINT PRIOR TO THE INITIAL CASE MANAGEMENT CONFERENCE

Honorable Marilyn H. Patel

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RECITALS A. On June 11, 2008, the Court set the Initial Case Management Conference in this

action for September 14, 2008. See Docket No. 2 (Case No. CV-08-2907-MHP). B. this action. C On July 11, 2008, Defendants AC Square, Ghaneh, and Bahmanyar filed Ex Parte On July 10, 2008, Plaintiff served Comcast with the Summons and Complaint in

Applications for Orders Allowing Defendants to File and Have Heard Motions to Dismiss Pursuant to FRCP 12(b)(6) Prior to Initial Case Management Conference in Case No. CV-082907- MPH. See Docket Nos. 7, 8, and 9 (Case No. CV-08-2907-MHP). D. On July 15, 2008, the Court granted Defendants AC Square, Ghaneh, and

Bahmanyar's Ex Parte Applications for leave to file their motions to dismiss by July 21, 2008. The Court set the following related dates: Oppositions to be filed by August 4, 2008, Replies to be filed by August 11, 2008, and Motion to be heard on August 25, 2008 at 2:00 p.m. See Docket No. 10 (Case No. CV-08-2907-MHP). E. On or about July 15, 2008, the parties agreed to an extension of time for Comcast

to file a response to Plaintiff's Complaint, up to and including July 30, 2008. F. On July 16, 2008, the Court ordered Case No. CV-08-2907 and Case No. CV-08-

3035 related. See Docket No. 11 (Case No. CV-08-2907-MHP) and No. 16 (Case No. CV-083035-EDL). G. On July 17, 2008, Case No. CV-08-3035-EDL was reassigned to the Honorable

Judge Marilyn H. Patel. H. Federal Rule of Civil Procedure 12(a)(1)(A)(i) requires a defendant to file an

answer to a complaint within 20 days after being served, and that Federal Rule of Civil Procedure, Rule 12(b) allows a defendant to serve a motion to dismiss in lieu of an answer. The parties further agree that absent a Court Order allowing for an exception, Standing Order Number 4 prevents Defendant from filing the accompanying motion to dismiss until after the Initial Case Management Conference on September 15, 2008.
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TERMS OF STIPULATION 1. The parties jointly request that the Court allow Comcast to have its motion to

dismiss heard before the Initial Case Management Conference set for September 15, 2008 (Case No. CV-08-2907-MHP). 2. Defendant's motion seeks dismissal of Plaintiff's Complaint, in its entirety,

without leave to amend. Should the Court decide to dispose of Plaintiff's claims against Comcast prior to the Initial Case Management Conference, Comcast could avoid incurring legal fees and costs by not having to file an answer or make initial disclosures. 3. The parties recognize that this Court granted on July 15, 2008 an ex parte motion

the other defendants brought for this same purpose in this action, and believe it should not be necessary to burden the Court with another such motion. 4. Based on the foregoing and in the interest of judicial economy, the parties agree

that Defendant should be allowed to file its motion at the earliest possible stage of this litigation. IT IS SO STIPULATED. Dated: July 30, 2008 LAW OFFICES OF DANIEL BERKO

By

/s/ Daniel Berko Daniel Berko Attorneys for Plaintiff Daniel Keating-Traynor

Dated: July 30, 2008

MORGAN, LEWIS & BOCKIUS LLP

By

/s/ Daryl S. Landy Daryl S. Landy Attorneys for Defendant COMCAST INC.

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IT IS SO ORDERED that: The parties' request to allow Defendant to file the attached Motion to Dismiss Plaintiff's Complaint is granted. Defendant shall file and serve the motion by no later than _________________, 2008. The hearing on this motion is set for September 8, 2008, at 2:00 p.m. Any opposition to the motion shall be filed and served by __________________, 2008. Any reply to the opposition shall be filed and served by ________________, 2008.

Dated: ___________________

By: _____________________________ United States District Court Judge

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EXHIBIT A

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MORGAN, LEWIS & BOCKIUS LLP DARYL S. LANDY, SBN. 136288 2 Palo Alto Square 3000 El Camino Real, Suite 700 Palo Alto, CA 94306-2122 Tel: 650.843.4000 Fax: 650.843.4001 E-mail: [email protected] MORGAN, LEWIS & BOCKIUS LLP ANN MARIE REDING, SBN 226864 One Market Street, Spear Street Tower San Francisco, California 94105-1126 Tel: 415.442.1000 Fax: 415.442.1001 E-mail: [email protected] Attorneys for Defendant COMCAST INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

DANIEL KEATING-TRAYNOR on behalf of himself and all others similarly situated; Plaintiffs, vs. AC SQUARE INC.; COMCAST INC.; AFSHIN GHANEH; ANDREW BAHMANYAR; AND DOES 1-60 INCLUSIVE; Defendants.

Case No. CV-08-2907-MHP DEFENDANT COMCAST INC.'S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF'S COMPLAINT FRCP Rule 12(B)(6) Date: September 8, 2008 Time: 2:00 p.m. Courtroom: 15 Judge: Honorable Marilyn H. Patel

23 24 25 26 27 28 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on September 8, 2008, at 2:00 p.m., or as soon thereafter as the matter may be heard in Courtroom 15 of the above-entitled Court, located at 450 Golden Gate Avenue, San Francisco, California 94102, Defendant Comcast Inc. (hereinafter "Comcast" or
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Case No. CV-08-2907-MHP DEFENDANT COMCAST'S NOTICE OF MOTION AND MOTION TO DISMISS

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"Defendant") will and hereby moves this Court to dismiss Plaintiff Daniel Keating-Traynor's ("Plaintiff") Complaint against Comcast, pursuant to Federal Rule of Civil Procedure 12(b)(6). Plaintiff's First Claim for Violation of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (hereinafter "FLSA") and Second Claim for Conspiracy to Violate the FLSA both fail to state a claim upon which relief can be granted because his claims are time-barred by the maximum three-year statute of limitations. Leave to amend would be futile because the allegations in Plaintiff's Complaint conclusively demonstrate that Plaintiff would not be able to state viable claims under these theories. This motion is based on this Notice of Motion and Motion, the Memorandum of Points and Authorities, the Request for Judicial Notice, and the pleadings and papers previously filed.

MORGAN, LEWIS & BOCKIUS LLP DARYL S. LANDY ANN MARIE REDING

Dated: _______________________

By Daryl S. Landy Attorneys for Defendant COMCAST INC.

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EXHIBIT B

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MORGAN, LEWIS & BOCKIUS LLP DARYL S. LANDY, SBN. 136288 2 Palo Alto Square 3000 El Camino Real, Suite 700 Palo Alto, CA 94306-2122 Tel: 650.843.4000 Fax: 650.843.4001 E-mail: [email protected] MORGAN, LEWIS & BOCKIUS LLP ANN MARIE REDING, SBN 226864 One Market Street, Spear Street Tower San Francisco, California 94105-1126 Tel: 415.442.1000 Fax: 415.442.1001 E-mail: [email protected] Attorneys for Defendant COMCAST INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

DANIEL KEATING-TRAYNOR on behalf of himself and all others similarly situated; Plaintiffs, vs. AC SQUARE INC.; COMCAST INC.; AFSHIN GHANEH; ANDREW BAHMANYAR; AND DOES 1-60 INCLUSIVE; Defendants.

Case No. CV-08-2907-MHP DEFENDANT COMCAST INC.'S REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF ITS MOTION TO DISMISS PLAINTIFF'S COMPLAINT FRCP RULE 12(B)(6) Date: September 8, 2008 Time: 2:00 p.m. Courtroom: 15 Judge: Honorable Marilyn H. Patel

23 24 25 26 27 28 In accordance with the Federal Rule of Evidence 201, Defendant Comcast Inc. ("Defendant" or "Comcast") respectfully requests that this Court take judicial notice of each of the exhibits accompanying this Request for Judicial Notice. ///
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Federal Rule of Evidence 201 allows a court to take judicial notice of facts that are "not subject to reasonable dispute in that [they are] either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b). Accordingly, Defendant asks this Court to take judicial notice of the following exhibit: 1. Attached hereto and incorporated herein by reference as Exhibit A is a true and

correct copy of the Complaint in Daniel Joseph Keating-Traynor v. AC Square, Inc., Case No. CIV 456118, filed in the Superior Court of the State of California, County of San Mateo, on July 7, 2006. MORGAN, LEWIS & BOCKIUS LLP DARYL S. LANDY ANN MARIE REDING

Dated: ___________________

By Daryl S. Landy Attorneys for Defendant COMCAST INC.

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EXHIBIT A

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EXHIBIT C

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MORGAN, LEWIS & BOCKIUS LLP DARYL S. LANDY, SBN. 136288 2 Palo Alto Square 3000 El Camino Real, Suite 700 Palo Alto, CA 94306-2122 Tel: 650.843.4000 Fax: 650.843.4001 E-mail: [email protected] MORGAN, LEWIS & BOCKIUS LLP ANN MARIE REDING, SBN 226864 One Market Street, Spear Street Tower San Francisco, California 94105-1126 Tel: 415.442.1000 Fax: 415.442.1001 E-mail: [email protected] Attorneys for Defendant COMCAST INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

DANIEL KEATING-TRAYNOR on behalf of himself and all others similarly situated; Plaintiffs, vs. AC SQUARE INC.; COMCAST INC.; AFSHIN GHANEH; ANDREW BAHMANYAR; AND DOES 1-60 INCLUSIVE; Defendants.

Case No. CV-08-2907-MHP DEFENDANT COMCAST INC.'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION TO DISMISS PLAINTIFF'S COMPLAINT FRCP RULE 12(B)(6) Date: September 8, 2008 Time: 2:00 p.m. Courtroom: 15 Judge: Honorable Marilyn H. Patel

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MEMORANDUM OF POINTS AND AUTHORITIES PRELIMINARY STATEMENT. On June 11, 2008, Plaintiff Daniel Keating-Traynor ("Plaintiff") filed this putative wage and hour class action in the above-referenced Court alleging two claims against Defendant Comcast Inc. ("Defendant" or "Comcast"): (1) Violation of the Fair Labor Standards Act, 29 U.S.C. section 201, et seq. ("FLSA") and (2) Conspiracy to Violate the FLSA. According to Plaintiff's Complaint, he was employed as a technician for defendant AC Square, Inc., a company which employs technicians that install, disconnect, and upgrade cable television, computer and other electronic services to consumers who use Comcast's services and equipment. (Complaint ¶2.) Plaintiff further alleges that Comcast was his "joint employer." (Complaint ¶3.)1 In addition, Plaintiff alleges that his employment was terminated on May 2, 2005. (Request for Judicial Notice filed herewith, Ex. A, ¶13.) Comcast seeks to dismiss Plaintiff's claims because they are barred by the FLSA's maximum three-year statute of limitations. Accordingly, because both claims against Comcast fail to state a claim upon which relief can be granted, Plaintiff's case must be dismissed in its entirety without leave to amend. II. THE STANDARD FOR GRANTING A MOTION TO DISMISS. Part or all of a complaint must be dismissed if it "fail[s] to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). Dismissal is proper where the complaint's allegations, even if taken as true, would not entitle the plaintiff to recover as a matter of law. Jacobs v. Block, 250 F.3d 729, 732 (9th Cir. 2001); Balistreri v. Pacifica Police Dep't., 901 F.2d 696, 699 (9th Cir. 1988). Here, as discussed below, Plaintiff's claims should be dismissed because they are defective on the face of the Complaint. Plaintiff's class action allegations for these claims should also be dismissed, because he has no standing to bring these claims on behalf of a class. General Telephone Co. of Southwest v. Falcon, 457 U.S. 147 (1982) (holding persons without claims themselves cannot represent a class who may have claims). Comcast strongly disputes this allegation and reserves all of its rights to assert that it never was Plaintiff's employer.
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III.

PLAINTIFF'S FIRST CLAIM FOR VIOLATION OF THE FLSA IS TIMEBARRED. In his First Claim, Plaintiff purports to state a claim for violation of the FLSA.

(Complaint ¶¶ 11-14.) Under the FLSA, an action to recover unpaid overtime compensation is barred unless commenced within two years after the cause of action accrues, except where the violation of the Act was "willful," in which case the action may be commenced within three years. 29 U.S.C. § 255. Under the FLSA, a cause of action for unpaid wages accrues each payday on which the wages due to an employee were not paid. Bazemore v. Friday, 478 U.S. 385, 395-96 (1986); Biggs v. Wilson, 1 F.3d 1537, 1540 (9th Cir. 1993). In his original Complaint filed against defendant AC Square, Inc., Plaintiff alleged that his employment terminated on May 2, 2005. (Request for Judicial Notice filed herewith, Ex. A, ¶13.)2 Plaintiff did not file the instant lawsuit until June 11, 2008, over three years after his termination. Accordingly, Plaintiff did not, and cannot, plead facts sufficient to state a claim for violation of FLSA because his claim is barred by the both the two-year and three-year statutes of limitations. Therefore, Plaintiff's First Claim for violation of the FLSA should be dismissed. IV. PLAINTIFF'S SECOND CLAIM FOR CONSPIRACY TO VIOLATE THE FLSA IS ALSO TIME-BARRED. In his Second Claim, Plaintiff purports to state a claim for conspiracy to violate the FLSA. (Complaint ¶¶ 15-16.) The applicable statute of limitations for a civil conspiracy claim is the statute of limitations for the underlying claim. See Harrell v. 20th Century Ins. Co., 934 F.2d 203, 208 (9th Cir. 1991) (where fraud claim barred by applicable three-year statute of limitation, civil conspiracy claim based on fraud did not constitute actionable claim); Risk v. Kingdom of Norway, 707 F. Supp. 1159, 1170, n. 13 (N.D. Cal. 1989)(noting that liability is based on underlying tort committed in furtherance of conspiracy and applicable statute of limitations is that of underlying tort); Maheu v. CBS, Inc., 201 Cal. App. 3d 662, 673 (1988) (in "an action based on civil conspiracy, the applicable statute of limitations is determined by the nature of the action in Admissions in the pleadings are generally binding on the parties and the Court See American Title Ins. Co. v. Lacelaw Corp., 861 F.2d 224, 226 (9th Cir. 1988).
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which the conspiracy is alleged"). Accordingly, the statute of limitations for Plaintiff's Second Claim for Conspiracy to Violate the FLSA is the same as the maximum three-year statute of limitations for his First Claim for Violation of the FLSA. Therefore, like the First Claim for violation of the FLSA above, Plaintiff's Second Claim is time-barred and must be dismissed. V. ANY CLASS ALLEGATIONS BASED UPON PLAINTIFF'S CLAIMS SHOULD ALSO BE DISMISSED. Because Plaintiff cannot individually bring his First Claim for Violation of the FLSA or his Second Claim for Conspiracy to Violate the FLSA, as addressed above, he cannot represent a class who may have such claims. General Telephone Co. of Southwest v. Falcon, 457 U.S. 147 (1982) (holding persons without claims themselves cannot represent a class who may have claims); O'Shea v. Littleton, 414 U.S. 488, 494 (1974) (same). Thus, the Court should dismiss not only Plaintiff's individual claims, but also dismiss these claims brought on behalf of the putative class. VI. CONCLUSION For all the foregoing reasons, this Court should dismiss Plaintiff's Complaint in its entirety, without leave to amend. MORGAN, LEWIS & BOCKIUS LLP DARYL S. LANDY ANN MARIE REDING

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Dated: ___________________________

By Daryl S. Landy Attorneys for Defendant COMCAST INC.

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EXHIBIT D

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MORGAN, LEWIS & BOCKIUS LLP DARYL S. LANDY, SBN. 136288 2 Palo Alto Square 3000 El Camino Real, Suite 700 Palo Alto, CA 94306-2122 Tel: 650.843.4000 Fax: 650.843.4001 E-mail: [email protected] MORGAN, LEWIS & BOCKIUS LLP ANN MARIE REDING, SBN 226864 One Market Street, Spear Street Tower San Francisco, California 94105-1126 Tel: 415.442.1000 Fax: 415.442.1001 E-mail: [email protected] Attorneys for Defendant COMCAST INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

DANIEL KEATING-TRAYNOR on behalf of himself and all others similarly situated; Plaintiffs, vs. AC SQUARE INC.; COMCAST INC.; AFSHIN GHANEH; ANDREW BAHMANYAR; AND DOES 1-60 INCLUSIVE; Defendants.

Case No. CV-08-2907-MHP [PROPOSED] ORDER GRANTING DEFENDANT COMCAST INC.'S MOTION TO DISMISS FRCP Rule 12(B)(6) Date: September 8, 2008 Time: 2:00 p.m. Courtroom: 15 Judge: Honorable Marilyn H. Patel

23 24 25 26 27 28 WHEREFORE, on September 8, 2008, the Motion to Dismiss Plaintiff Daniel KeatingTraynor's ("Plaintiff") Complaint filed by Defendant Comcast Inc. ("Comcast" or "Defendant") came on for regularly scheduled hearing in Courtroom Fifteen, the Honorable Marilyn H. Patel presiding. Daryl Landy of Morgan, Lewis & Bockius LLP appeared on behalf of Comcast and
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Daniel Berko appeared on behalf of Plaintiff. Upon consideration of the pleadings, papers, and arguments of counsel, and with good cause shown, it is hereby ORDERED AND ADJUDGED THAT: Defendant's Motion is GRANTED. Plaintiff's First Claim for Violation of the Fair Labor Standards Act, 29 U.S.C. section 201, et seq. ("FLSA") is dismissed, without leave to amend, because it is time-barred by the FLSA's maximum three-year statute of limitations. 29 U.S.C. § 255. Plaintiff's Second Claim is also dismissed, without leave to amend, because it is timebarred by the maximum three-year statute of limitations. Harrell v. 20th Century Ins. Co., 934 F.2d 203, 208 (9th Cir. 1991) (holding applicable statute of limitations for a civil conspiracy claim is statute of limitations for underlying claim); Risk v. Kingdom of Norway, 707 F. Supp. 1159, 1170, n. 13 (N.D. Cal. 1989) (same). Accordingly, Plaintiff's Complaint against Comcast, including all class allegations, is dismissed, in its entirety, without leave to amend. IT IS SO ORDERED.

Dated: ______________________

By: _____________________________ United States District Court Judge

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