FILED

NOT FOR PUBLICATION

JUL 15 2021

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIAN NEWTON, an individual, No. 20-55146

Plaintiff-Appellant, D.C. No. 2:15-cv-02517-RGK-AGR v.

PARKER DRILLING MANAGEMENT MEMORANDUM*

SERVICES, LTD., Erroneously Sued As Parker Drilling Management Services, Inc.,

Defendant-Appellee,

and

PARKER DRILLING MANAGEMENT

SERVICES, INC., a Nevada Corporation,

Defendant.

Appeal from the United States District Court for the Central District of California R. Gary Klausner, District Judge, Presiding

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Submitted March 18, 2021** San Francisco, California

Before: MURGUIA and CHRISTEN, Circuit Judges, and LYNN,*** Chief District Judge.

Plaintiff Brian Newton appeals the district court’s order granting Parker

Drilling Management Services’ motion to dismiss his claims alleging violations of

California’s wage and hour laws. We have jurisdiction pursuant to

28 U.S.C. § 1291, and we affirm. Because the parties are familiar with the facts,

we recite only those necessary to decide the appeal.

We review de novo a district court’s order granting a motion to dismiss

pursuant to Federal Rule of Civil Procedure 12(b)(6). Autotel v. Nev. Bell Tel. Co.,

697 F.3d 846, 850 (9th Cir. 2012). Our review is limited to the complaint,

materials incorporated into the complaint by reference, and matters of which we

may take judicial notice. Karasek v. Regents of Univ. of Cal., 956 F.3d 1093, 1104

(9th Cir. 2020). “A complaint will not survive a motion to dismiss unless it

‘contain[s] sufficient factual matter, accepted as true, to state a claim to relief that

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Barbara M. G. Lynn, Chief United States District Judge for the Northern District of Texas, sitting by designation. 2 is plausible on its face.’” Id. (alteration in original) (quoting Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009)).

Pursuant to the Outer Continental Shelf Lands Act (OCSLA),

43 U.S.C. § 1331 et seq., all law on the Outer Continental Shelf (OCS) is federal,

and state law is adopted as surrogate federal law only to the extent it is applicable

and not inconsistent with federal law. 43 U.S.C. § 1333(a)(2)(A). In Parker

Drilling Management Services v. Newton, the Supreme Court held that “to the

extent federal law applies to a particular issue, state law is inapplicable” on the

OCS, and “the OCSLA . . . does not adopt state law where there is no gap [in

federal law] to fill.” 139 S. Ct. 1881, 1889, 1891 (2019) (internal quotation marks

and citation omitted).

1. Newton argues the district court erred by dismissing his meal- and

rest-period claims because federal law does not address meal and rest periods. We

disagree. The regulations implementing the Fair Labor Standards Act (FLSA),

29 U.S.C. § 201 et seq., address meal periods by providing that “[b]ona fide meal

periods are not worktime”—and therefore need not be compensated—but meal

periods are compensable as worktime if employees are not “completely relieved

from duty.” 29 C.F.R. § 785.19(a). The FLSA’s implementing regulations address

rest periods by requiring employers to compensate employees for all rest periods.

3 See 29 C.F.R. § 785.18. “Because the federal regulations address meal and rest

periods, there is no gap in federal law for state law to fill.” Mauia v. Petrochem

Insulation, Inc., — F.3d —, No. 20-15810 at 13 (9th Cir. 2021).

2. Newton also contends that the district court should not have dismissed

his pay-stub claim because “there are no federal wage statement laws akin to those

found in California law.” The FLSA provides that employers “shall make, keep,

and preserve such records of the persons employed by him and of the wages, hours,

and other conditions and practices of employment . . . .” 29 U.S.C. § 211(c). The

FLSA’s implementing regulations require employers to maintain and preserve

records containing employees’ “[r]egular hourly rate of pay,” “[h]ours worked

each workday and total hours worked each workweek,” “[t]otal daily or weekly

straight-time earnings or wages due,” “[t]otal premium pay for overtime hours,”

“[t]otal wages paid each pay period,” and “[d]ate of payment and the pay period

covered by payment,” among other things. 29 C.F.R. § 516.2(a). The regulations

also require employers to provide payment receipts to employees if the employer

“makes retroactive payment of wages or compensation . . . .” 29 C.F.R. § 516.2(b).

Federal law therefore addresses what records employers must maintain and when

employers must provide wage-payment information to employees, and the district

court did not err by dismissing Newton’s pay-stub claim. Mauia, — F.3d —, No.

4 20-15810 at 14–15 (observing that Parker Drilling “requires that we ask whether

federal law addresses the relevant issue, not whether federal law addresses it in the

same way”) (citing Parker Drilling, 139 S. Ct. at 1892–93).

3. Newton’s “waiting-time-penalty claim is based on allegations that

Parker failed to pay all meal and rest period premium wages owed at the

conclusion of Newton’s employment.” Because Newton’s underlying meal- and

rest-period claims fail, the district court did not err by dismissing Newton’s

waiting-time claim. Moreover, “[E]mployees must be paid on payday under the

FLSA.” Biggs v. Wilson, 1 F.3d 1537, 1542 (9th Cir. 1993); 29 U.S.C. § 216(b).

Because federal law addresses when wages are due, the district court did not err by

dismissing Newton’s waiting-time claim. See Mauia, — F.3d —, No. 20-15810 at

14–15.

4. Newton concedes his unfair competition and California Private

Attorneys General Act (PAGA) claims are “predicated on Parker’s alleged

violations of state wage-and-hour laws, including those for unpaid meal and rest

period premiums.” Accordingly, the district court did not err by dismissing

Newton’s derivative unfair competition and PAGA claims. See Mauia, — F.3d —,

No. 20-15810 at 15.

AFFIRMED.

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