NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAY 4 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

LAUREN BOYACK and JENNIFER No. 19-55279 LEAF, individually and on behalf of all others similarly situated, D.C. No. 8:18-cv-01233-AG-DFM

Plaintiffs-Appellants,

MEMORANDUM*

v.

REGIS CORPORATION; REGIS CORP.;

and RG SALON MANAGEMENT LLC,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California, Santa Ana Andrew J. Guilford, District Judge, Presiding

Submitted March 31, 2020** Pasadena, California

Before: BEA and BADE, Circuit Judges, and McCALLA,*** District Judge.

Lauren Boyack and Jennifer Leaf appeal the district court’s dismissal of

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Jon P. McCalla, United States District Judge for the Western District of Tennessee, sitting by designation. their second amended complaint (“SAC”). The district court dismissed the SAC’s

first, second, fourth, fifth, and seventh causes of action pursuant to Federal Rule of

Civil Procedure 12(b)(6), finding that under Landers v. Quality Communications,

Inc., 771 F.3d 638 (9th Cir. 2014), the SAC insufficiently pled state law claims

including for unpaid overtime, unpaid minimum wages, and rest break violations

under the California Labor Code. The district court also struck the SAC’s third,

sixth, and eighth causes of action pursuant to Federal Rule of Civil Procedure

12(f), finding that Appellants had filed these claims in violation of Federal Rule of

Civil Procedure 15(a)(2). The district court also denied Appellants leave to amend

the SAC because Appellants had repeatedly failed to cure the SAC’s deficiencies.

We have jurisdiction pursuant to 28 U.S.C. § 1291. We review the district

court’s dismissal of the SAC pursuant to Rule 12(b)(6) de novo. See Wilson v.

Lynch, 835 F.3d 1083, 1090 (9th Cir. 2016). We review for abuse of discretion

both the district court’s decision to strike claims from the SAC, see Davidson v.

Kimberly-Clark Corp., 873 F.3d 1103, 1109 (9th Cir. 2017), and its denial of leave

to amend, see Curry v. Yelp, Inc., 875 F.3d 1219, 1224 (9th Cir. 2017). We affirm.

I.

Appellants argue that the district court erred by dismissing their state law

claims for unpaid overtime and minimum wages, rest break violations, failure to

pay wages owed upon termination or resignation, providing inaccurate wage

2 statements, and unfair business practices. In Landers, this court held that to state

plausible claims for unpaid overtime and minimum wages under the Fair Labor

Standards Act, a plaintiff must “at minimum” allege “at least one workweek when

[she] worked in excess of forty hours and was not paid for the excess hours in that

workweek, or was not paid minimum wages.” 771 F.3d at 646.

Appellants’ unpaid overtime and minimum wage claims fail to meet this

requirement.1 The SAC fails to allege a workweek in which Boyack or Leaf

worked more than forty hours and were not paid overtime for those excess hours

worked. While Boyack alleges that she was paid “purely on commissions and

tips,” that allegation alone does not plausibly allege that Boyack received less than

minimum wages for all hours worked.2 The allegation that Leaf received varying

rates of pay over several workweeks also does not plausibly support her minimum

1 Appellants argue that Landers does not require a plaintiff plead the specific number of hours she worked in a workweek. Although Landers does not require plaintiffs plead “with mathematical precision” the number of hours they worked in a week, Landers does require plaintiffs to allege they worked several hours without being paid minimum wages, which Appellants failed to do. See 771 F.3d at 645 (quoting DeJesus v. HF Mgmt. Servs., LLC, 726 F.3d 85, 90 (2d Cir. 2013)). Instead, Appellants merely alleged specific weeks for which they are “owed” a specified amount of overtime pay. This is a legal conclusion for which the complaint contains no supporting factual allegations, such as the number of hours worked compared to the number of hours for which compensation was given. 2 Appellants assert they were paid on a piece-rate basis, qualifying them for the protections of California Labor Code § 226.2(a). The SAC does not sufficiently allege that Boyack and Leaf were paid on a piece-rate basis.

3 wage claim.

Appellants’ rest break violation claim also falls short of the requirements of

Landers. Appellants failed to allege a single workweek in which Appellees

impeded or discouraged Boyack or Leaf from taking rest breaks. See id. at 646;

see also Brinker Rest. Corp. v. Superior Court, 53 Cal. 4th 1004, 1040 (2012) (a

meal break violation does not occur unless the employer “impede[s] or

discourage[s]” employees from taking breaks).3 Appellants assert that their

reference to Appellees’ employee handbook is enough to state a claim.4 This

reference alone does not meet the requirements of Landers because it does not

provide facts demonstrating at least one workweek in which Leaf or Boyack were

personally deprived of rest breaks. See Landers, 771 F.3d at 646.

Finally, Appellants failed to plead sufficiently their claims for failure to pay

wages owed upon termination or resignation, inaccurate wage statements, and

unfair business practices because each claim provides only conclusory allegations

reciting the statutory elements. See Landers, 771 F.3d at 641.

II.

The district court improperly struck Appellants’ third, sixth, and eighth

3 Brinker’s meal period requirements have been applied to rest break claims. See Augustus v. ABM Sec. Servs., Inc., 2 Cal. 5th 257, 260, 265 (2016). 4 Given the disposition of this case, we deny as moot Appellees’ motion to supplement the record. Dkt. No. 19.

4 causes of action under Federal Rule of Civil Procedure 12(f). Rule 12(f) allows a

district court only to strike redundant, immaterial, or scandalous claims. See

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

Despite this error, we affirm the district court’s decision. The stricken causes of

action exceeded the scope of the Parties’ stipulation allowing Appellants to file a

SAC, and were filed without leave of court. See Fed. R. Civ. P. 15(a)(2). These

claims are properly dismissed pursuant to Rule 12(b)(6) for failure to state a

claim.5

III.

The district court did not abuse its discretion when it denied Appellants

leave to amend the SAC. Appellants argue that Lopez v. Smith, 203 F.3d 1122 (9th

Cir. 2000), required the district court to grant Appellants leave to amend because

Appellants could have cured the SAC’s deficiencies by pleading additional facts.

The decision to deny leave to amend is within the sound discretion of the district

court, see id. at 1127, and this court has consistently affirmed district courts’ denial

of leave to amend in cases procedurally analogous to Appellants’ case. See, e.g.,

William O. Gilley Enterps., Inc. v. Atl. Richfield Co., 668 n.8 (9th Cir. 2009)

5 Appellees moved to dismiss the entire SAC pursuant to Rule 12(b)(6), and the district court fully addressed the issue of whether these causes of action were filed in violation of Rule 15(a)(2). See Singleton v. Wulff, 428 U.S. 106, 121 (1976) (a federal appellate court may “resolv[e] an issue not passed on below . . . whe[n] the proper resolution is beyond any doubt”).

5 (finding that the plaintiff’s repeated failures to cure deficiencies suggested it would

be “futile to offer [the plaintiff] another chance” to amend his complaint);

Abagninin v. AMVAC Chem. Corp., 545 F.3d 733, 742 (9th Cir. 2008) (affirming

the district court’s dismissal of the plaintiff’s class complaint without leave to

amend after the plaintiff had failed repeatedly to cure identified deficiencies in the

complaint and after the district court had allowed the parties to engage in discovery

and held a hearing to discuss the deficiencies).

AFFIRMED.

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