1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 FRED BOWERMAN, et al., Case No. 3:13-cv-00057-WHO Plaintiffs, And Related Cases as Noted in Order 8 v. 9 ORDER ON MOTIONS TO DISMISS IN 10 FIELD ASSET SERVICES, INC., et al., RELATED CASES Defendants. Re: Dkt. Nos. 533, 534, 535 11

12 13 BACKGROUND 14 These cases are related to the underlying worker misclassification and wage-and-hour 15 litigation in Bowerman v. Field Asset Services, No. 13-cv-00057 (N.D. Cal. April 4, 2023), which 16 was initially filed on January 7, 2013. (“Bowerman Dkt.” No. 1). This Order assumes familiarity 17 with that case and procedural history, as well as the holding in Bowerman v. Field Asset Services, 18 Inc., 39 F.4th 652 (9th Cir. 2022), as amended, 60 F.4th 459 (9th Cir. 2023). 19 After trial, the Ninth Circuit decertified the class and reversed the summary judgment 20 decision. See id. I found that the statute of limitations had been tolled from the filing of the 21 Bowerman case until 60 days after notice to the former class members. Bowerman Dkt. No. 510. 22 Subsequently, dozens of members of that decertified class filed individual cases, which were 23 related to the original Bowerman case under this district’s Local Rules. See Bowerman Dkt. Nos. 24 513, 520, 539. 25 Defendants Field Asset Services, Inc., Field Asset Services, LLC, Xome Field Services 26 LLC, Cyprexx Services, LLC, and ten Doe defendants (collectively, “FAS”) began filing motions 27 to dismiss in the individual cases. To comply with Federal Rule of Civil Procedure (“FRCP”) 1 divide the cases into three groups and file an exemplar motion to dismiss for each group, and I 2 stayed the other cases’ motions to dismiss pending resolution of those exemplar motions. See 3 Bowerman Dkt. No. 523. FAS did so. See Bowerman Dkt. Nos. 526-528. FAS chose as 4 exemplar cases Leal v. FAS, No. 23-cv-01176, Garcia v. FAS, No. 23-cv-01509, and Rodriguez v. 5 FAS, No. 23-cv-01436. Motion to Dismiss Joel Leal, Bowerman Dkt No. 526; Motion to Dismiss 6 Matthew Garcia (“Garcia Mot.”) Bowerman Dkt No. 527; Motion to Dismiss Gilberto Rodriguez 7 (“Rodriguez Mot.”) Bowerman Dkt No. 528. 8 The plaintiffs filed oppositions. Opposition to Joel Leal, Bowerman Dkt. No. 533; 9 Opposition to Matthew Garcia (“Garcia Oppo.”) Bowerman Dkt. No. 534; Opposition to Gilberto 10 Rodriguez (“Rodriguez Oppo.”) Bowerman Dkt. No. 535. 11 FAS filed replies. Reply to Joel Leal, Bowerman Dkt. No. 541; Reply to Matthew Garcia 12 (“Garcia Repl.”) Bowerman Dkt. No. 540; Reply to Gilberto Rodriguez (“Rodriguez Repl.”) 13 Bowerman Dkt. No. 542. 14 I held a hearing at which counsel for all parties appeared. I ordered the parties to file 15 supplemental briefing on the Colorado River Doctrine, an issue that the defendants raised for the 16 first time in their reply briefs, and the parties did so. (“Pls. Supp. Br.”) Bowerman Dkt. No. 549; 17 (“Def. Supp. Br.”) Bowerman Dkt. No. 552. 18 After the hearing on these motions to dismiss, the plaintiffs voluntarily dismissed the cases 19 from Group 1, including: Leal v. Field Asset Servs., Inc., No. 4:23-cv-01176-WHO; Bates v. Field 20 Asset Servs., Inc., No. 3:23-cv-01206-WHO; Lewis v. Field Asset Servs., Inc., No. 3:23-cv-01177- 21 WHO; Lewis v. Field Asset Servs., Inc., No. 3:23-cv-01177-WHO; see also Bowerman Dkt. No. 22 526. 23 LEGAL STANDARD 24 Under Federal Rule of Civil Procedure 12(b)(6), a district court must dismiss a complaint 25 if it fails to state a claim upon which relief can be granted. To survive a Rule 12(b)(6) motion to 26 dismiss, the plaintiff must allege “enough facts to state a claim to relief that is plausible on its 27 face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible when 1 is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation 2 omitted). There must be “more than a sheer possibility that a defendant has acted unlawfully.” Id. 3 While courts do not require “heightened fact pleading of specifics,” a plaintiff must allege facts 4 sufficient to “raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555, 570. 5 In deciding whether the plaintiff has stated a claim upon which relief can be granted, the 6 Court accepts the plaintiff’s allegations as true and draws all reasonable inferences in favor of the 7 plaintiff. See Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). However, the court 8 is not required to accept as true “allegations that are merely conclusory, unwarranted deductions of 9 fact, or unreasonable inferences.” In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 10 2008). 11 If the court dismisses the complaint, it “should grant leave to amend even if no request to 12 amend the pleading was made, unless it determines that the pleading could not possibly be cured 13 by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000). In making 14 this determination, the court should consider factors such as “the presence or absence of undue 15 delay, bad faith, dilatory motive, repeated failure to cure deficiencies by previous amendments, 16 undue prejudice to the opposing party and futility of the proposed amendment.” Moore v. Kayport 17 Package Express, 885 F.2d 531, 538 (9th Cir. 1989). 18 DISCUSSION 19 I. GROUP 2 CASES – GARCIA V. FAS, NO. 23-CV-015091 20 FAS selected these five cases for Group 2 because all involve plaintiffs who allege that 21 they started working for FAS after January 10, 2010, which was three years prior to the date that 22 the original Bowerman case was filed. See Bowerman Dkt. No. 527. In the lead case for this 23 group, Garcia v. FAS, no. 23-cv-01509, plaintiff Matthew Garcia alleges that he began working 24 for FAS in 2012 and continued working for FAS until about 2014. Garcia Dkt. No. 1 (“Garcia 25

26 1 This ruling applies to the following cases: Garcia v. Field Asset Servs., Inc., No. 3:23-cv-01509- WHO; Dolack v. Field Asset Servs., Inc., No. 3:23-cv-01431-WHO; Fowler v. Field Asset Servs., 27 Inc., No. 3:23-cv-01296-WHO; Ibarra v. Field Asset Servs., Inc., v. Field Asset Servs., Inc., No. 1 Compl.”) ¶ 49. 2 FAS moves to dismiss each of Garcia’s claims. Garcia Mot. It argues that Garcia fails to 3 state a claim for overtime compensation and for expense reimbursement, that the waiting time 4 penalty claim fails because the predicate offenses fail, and that the UCL claim should be dismissed 5 for legal reasons.2 Garcia contests each argument and provided supplement briefing explaining his 6 request to dismiss the UCL claim without prejudice. Garcia Oppo. I address each argument in 7 turn. 8 A. Overtime Compensation 9 FAS moves to dismiss Garcia’s claim for overtime for (1) failure to identify a specific 10 work week in which he worked more than 40 hours without receiving overtime compensation as it 11 argues is required by Landers v. Quality Communications, Inc., 771 F.3d 638, 645 (9th Cir. 2014), 12 as amended (Jan. 26, 2015); (2) failure to explain why time spent traveling to job location is 13 compensable; and (3) failure to clarify that all hours worked were worked for FAS. Garcia Mot. 14 4:11-5:27. Garcia’s complaint alleges that his work day “typically started . . . at 8 a.m.” when he 15 “reviewed the work order, went to the designated job location and performed the job tasks” then 16 took the required photos and “typically returned home at 6 p.m.,” at which time he “typically 17 [spent] one to two hours” uploading photos and completing paperwork. Garcia Compl. ¶ 52. He 18 says he “typically worked five days a week, 10 to 12 hours a day.” Id. The complaint also alleges 19 that work assignments had to be completed within three days, id. ¶ 32, that payment was provided 20 by job completion rather than by hour, id. ¶ 33, and that Garcia “was required to regularly work 21 over eight hours in a day and/or forty hours in a work week to meet FAS’s [3 day] deadlines,” id. 22 ¶ 55. 23 FAS’s first argument is nearly identical to that made by the defendant in Huynh v. Jabil 24 Inc., No. 22-CV-07460-WHO, 2023 WL 1802417 (N.D. Cal. Feb. 7, 2023). In that case, the 25 defendant “assert[ed] that under Landers, [the plaintiff] must allege the specific workweeks that he 26 27 1 believes he and class members were not properly paid all wages.”3 Id. at *3. But in rejecting that 2 argument, I explained “[t]hat level of detail is not necessary to state a plausible individual or class 3 claim for unpaid wages.” Id. (citing Johnson v. Trumpet Behav. Health, LLC, No. 3:21-CV- 4 03221-WHO, 2021 WL 2554054, at *3 (N.D. Cal. June 22, 2021) (similarly rejecting the 5 argument that a plaintiff needs “to point to a particular instance” of a wage and hour violation, 6 although recognizing “with the pleading of more specific facts, the closer the complaint moves 7 toward plausibility” (quoting Landers, 771 F.3d at 645))). “What is required post-Landers are 8 facts that establish a plausible claim by, for example, alleging facts regarding the length of an 9 average workweek during the applicable period and the average rate of pay.” Id. 10 Here, Garcia’s complaint sufficiently alleges the length of an average workweek—50 to 60 11 hours per week, see Garcia Compl. ¶ 52—and provides specific examples and reasons why he was 12 not paid for overtime—he had to work overtime to accomplish his assigned tasks within the 3 day 13 period, was threatened with consequences for failing to do so, and was paid by the job task rather 14 than by the hours works, see id. ¶¶ 32-33, 45, 48. As in Huynh, these “details make [Garcia’s] 15 wage claim plausible and satisfy Landers.” 2023 WL 1802417, at *3. 16 Second, I am not persuaded by FAS’s argument about the compensability of time spent 17 traveling to job location. Even if this time were not compensable under California law, Garcia’s 18 allegations that he had to work from 10 to 12 hours a day, regularly worked over eight hours each 19 day to meet the 3 day deadlines, and worked 1 to 2 hours each night to finish paperwork, are 20 together sufficient to infer that his time spent other than traveling to and from job site amounted to 21 more than 40 hours each week. 22 Third, by arguing that Garcia did not specify that all his asserted hours were spent working 23 for FAS, as opposed to another company, FAS asks me to infer both that Garcia worked for 24 another company and that he spent some of his pleaded hours working for that company. But 25 based on the allegations in the complaint, it is plausible to infer that all of the hours stated in the 26

27 3 In that case, the plaintiff asserted claims for unpaid wages under nine separate statutes, including 1 complaint were spent working for FAS. And at a motion to dismiss, reasonable inferences are 2 made for the plaintiff, not the defendant. See Usher, 828 F.2d at 561. 3 Accordingly, the motion to dismiss this cause of action is DENIED. 4 B. Expense Reimbursement 5 FAS argues that Garcia’s allegations about reimbursements of expenses are too general and 6 conclusory to survive a motion to dismiss, that Garcia fails to allege the expenses were incurred as 7 a direct consequence to his work for FAS, and that Garcia fails to allege FAS was aware of the 8 expenses. See Garcia Mot. 6:1-7:14. 9 The California Labor Code provides that “[a]n employer shall indemnify his or her 10 employee for all necessary expenditures or losses incurred by the employee in direct consequence 11 of the discharge of his or her duties, or of his or her obedience to the directions of the employer, 12 even though unlawful, unless the employee, at the time of obeying the directions, believed them to 13 be unlawful.” Cal. Lab. Code § 2802(a); see also Johnson, 2021 WL 2554054, at *4. 14 Garcia’s allegations are sufficient to plead a claim under Labor Code section 2802. Garcia 15 asserts that he had to use his cell phone; pay for mileage, dump fees, and insurance; and purchase 16 tools and equipment to do his work for FAS. See Garcia Compl. ¶ 88. The complaint alleges in 17 detail how FAS required workers to meticulously photograph their work and upload hundreds of 18 photos, id. ¶¶ 29, 41-43, 47, which is sufficient to show that phone expenses were incurred as a 19 direct consequence of the work, cf. Huynh, 2023 WL 1802417, at *6 (denying motion to dismiss a 20 claim for expense reimbursement where plaintiff pleaded he was required to use his phone to 21 provide updates for his manager on his tasks). 22 Further, Garcia alleges that his tasks “included removing trash and debris from properties, 23 winterization, minor repairs, board-ups, rekeys, yard maintenance, janitorial work, installing 24 smoke detectors and straps on water heaters, and removing vehicles and appliances,” Garcia 25 Compl. ¶ 51, which required him to purchase “fuel, insurance, supplies, office supplies, tools and 26 equipment” and also to pay for “maintenance and repair of equipment and vehicles, storage fees, 27 [and] telephone and dump fees,” id. ¶ 56. Combined with the allegations that FAS’s business 1 specific tools and equipment necessary for tasks, id. ¶¶ 34, 37, 42, these allegations are more than 2 enough to plausibly allege that Garcia’s mileage, dump fees, insurance, tools, and equipment were 3 all expenses incurred as a direct result of his work for FAS. Cf. Huynh, 2023 WL 1802417, at *6. 4 It is unclear why FAS argues that the complaint “does not allege any facts to suggest he was 5 working for FAS when he incurred expenses”—the above allegations make clear that is not 6 accurate. See Garcia Mot. 7:1-5. 7 Finally, the complaint alleges that each of these costs were incurred because they were 8 “require[d]” by FAS, id. ¶ 23, which is sufficient to plausibly plead that FAS was aware of the 9 expenses. 10 Accordingly, the motion to dismiss this cause of action is DENIED. 11 C. Waiting Time Penalties 12 FAS makes two arguments regarding the waiting time claim: it is derivative of the 13 overtime and expense reimbursement claims and so too fails, and does not sufficiently allege the 14 specific unpaid expenses, the date they were due, when or how FAS failed to pay them, and that 15 FAS’s failure was willful. See Garcia Mot. 7:15-8:25; see also Cal. Lab. Code §§ 201, 203. 16 These are identical to the arguments that I recently rejected in Huynh, 2023 WL 1802417, at *6, 17 and fail for the same reasons. As in Huyhn, Garcia adequately alleged his substantive claims, and 18 so the claim for waiting time penalties survives. The motion is DENIED for this cause of action. 19 II. GROUP 3 CASES – RODRIGUEZ V. FAS, NO. 23-CV-014364 20 FAS selected these 46 cases for Group 3 because all involve plaintiffs that began working 21 4 This ruling applies to the following cases: Rodriguez v. Field Asset Servs., Inc., No. 3:23-cv- 22 01436- WHO; Aceves v. Field Asset Servs., Inc., No. 3:23-cv-01299-WHO; Ackel v. Field Asset Servs., Inc., No. 3:23-cv-01315-WHO; Anderson v. Field Asset Servs., Inc., No. 3:23-cv-01298- 23 WHO; Bautista v. Field Asset Servs., Inc., No. 3:23-cv-01545-WHO; Baxley v. Field Asset Servs., Inc., No. 3:23-cv-01297-WHO; Bess v. Field Asset Servs., Inc., No. 3:23-cv-01147-WHO; Burgett 24 v. Field Asset Servs., Inc., No. 3:23-cv-01251-WHO; Bush v. Field Asset Servs., Inc., No. 3:23- cv-01321-WHO; Canepa v. Field Asset Servs., Inc., No. 3:23-cv-01253-WHO; Carr v. Field Asset 25 Servs., Inc., No. 3:23-cv-01497-WHO; Carriere v. Field Asset Servs., Inc., No. 3:23-cv-01430- WHO; Cherrin v. Field Asset Servs., Inc., No. 3:23-cv-01525-WHO; Cino v. Field Asset Servs., 26 Inc., No. 3:23- cv-01476-WHO; Cohick v. Field Asset Servs., Inc., No. 3:23-cv-01154-WHO; Coleman v. Field Asset Servs., Inc., No. 3:23-cv-01462-WHO; Croy v. Field Asset Servs., Inc., 27 No. 3:23-cv-01383-WHO; Davis v. Field Asset Servs., Inc., No. 3:23-cv-01341-WHO; Davitian v. 1 for FAS before January 10, 2010, and continued working after that point. See Bowerman Dkt. No. 2 528. In the lead case for this group, Rodriguez v. FAS, no. 23-cv-01436, plaintiff Gilberto 3 Rodriguez alleges that he began working for FAS in 2008 and continued through 2016. Rodriguez 4 Dkt. No. 1 (“Rodriguez Compl.”) ¶ 54. 5 FAS moves to dismiss each claim for nearly identical reasons (and with a nearly identical 6 motion) as those addressed in Garcia. Rodriguez makes nearly identical counterarguments, and 7 his complaint is nearly identical to Garcia’s except for the specifics concerning his job timing, 8 duties, and daily schedule.5 See Rodriguez Compl. ¶¶ 54-58. 9 First, Rodriguez’s opposition dismisses all Labor Code claims that accrued before January 10 10, 2010. See Rodriguez Oppo. At 5 n.2. Accordingly, these claims are DISMISSED. 11 Second, Rodriguez’s overtime claim survives for the same reasons that Garcia’s claim 12 survives. Rodriguez pleaded that he started his day at 6 a.m. by reviewing his work order, then 13 traveled to the job sites, undertook the required tasks, took photographs, traveled home and arrived 14 between 6 p.m. and 7 p.m., and spent three to four more hours uploading photographs and 15 completing required documents. Rodriguez Compl. ¶ 54. He alleges that he worked 15 to 17 16 hours per day, five days per week. Id. His complaint also includes the same allegations as 17 Garcia’s about having to work overtime to accomplish assigned tasks within the 3-day period, 18 being threatened with consequences for failing to do so, and being paid by the job task rather than 19 Asset Servs., Inc., No. 3:23-cv-01153-WHO; Gonzalez v. Field Asset Servs., Inc., No. 3:23-cv- 20 01179-WHO; Hart v. Field Asset Servs., Inc., No. 3:23- cv-01221-WHO; Haskill v. Field Asset Servs., Inc., No. 3:23-cv-01434-WHO; Hill v. Field Asset Servs., Inc., No. 4:23-cv-01294-WHO; 21 Hopper v. Field Asset Servs., Inc., No. 3:23-cv-01529-WHO; Jones v. Field Asset Servs., Inc., No. 3:23-cv-01218-WHO; Miller v. Field Asset Servs., Inc., No. 3:23- cv-01342-WHO; Miller v. Field 22 Asset Servs., Inc., No. 3:23-cv-01175-WHO; Moore v. Field Asset Servs., Inc., No. 3:23-cv- 01458-WHO; Murray v. Field Asset Servs., Inc., No. 3:23-cv-01261-WHO; Parra v. Field Asset 23 Servs., Inc., No. 3:23-cv-01219-WHO; Pinto v. Field Asset Servs., Inc., No. 3:23-cv-01223-WHO; Purkett v. Field Asset Servs., Inc., No. 3:23-cv-01112-WHO; Rodriguez v. Field Asset Servs., Inc., 24 No. 3:23-cv-01510-WHO; Romo v. Field Asset Servs., Inc., No. 3:23-cv-01212-WHO; Rosiak v. Field Asset Servs., Inc., No. 3:23-cv-01479-WHO; Seko v v. Field Asset Servs., Inc., No. 3:23-cv- 25 01224-WHO Seman v. Field Asset Servs., Inc., No. 3:23-cv-01384-WHO; Sibilla v. Field Asset Servs., Inc., No. 3:23-cv-01215-WHO; Turri v. Field Asset Servs., Inc., No. 3:23-cv-01220-WHO; 26 Webster v. Field Asset Servs., Inc., No. 3:23-cv-01254-WHO; Whitmore v. Field Asset Servs., Inc., No. 3:23-cv-01491-WHO; Wulf v. Field Asset Servs., Inc., No. 3:23-cv-01432-WHO; Yager v. 27 Field Asset Servs., Inc., No. 3:23-cv-01151-WHO; see also Bowerman Dkt. No. 528. 1 by the hours worked. See id. ¶¶ 32-33, 37, 50, 53. Rodriguez, then, alleges that he worked 75 to 2 85 hours per week each work and provides specific allegations describing why he did so and why 3 he was not paid overtime for doing so. Like Garcia’s allegations, Rodriguez’s are sufficient under 4 Landers and Huyhn. The motion is DENIED on this basis. 5 Third, Rodriguez’s expense reimbursement claim also survives for the same reasons that 6 Garcia’s claim survives. He makes the same allegations about failure to pay for cell phones, 7 mileage, dump fees, insurance, tools, and equipment. See Rodriguez Compl. ¶ 95. He alleges the 8 same facts about the required use of phones for taking photos and uploading pictures. See id. 9 ¶¶ 29, 46-48, 52. Similar to Garcia, Rodriguez contends that his tasks “included removing trash 10 and debris from properties, minor repairs, board-ups, rekeys, yard maintenance, janitorial work, 11 and installing smoke detectors and straps on water heaters,” id. ¶ 56, which required him to 12 purchase “fuel, insurance, supplies, office supplies, tools and equipment” and also to pay for 13 “maintenance and repair of equipment and vehicles, storage fees, [and] telephone and dump fees,” 14 id. ¶ 62. Combined with identical allegations about FAS’s business model and required tools and 15 equipment, see id. ¶¶ 26, 34, 42, 47, and similar to Garcia, these allegations are more than enough 16 to plausibly allege that Rodriguez’s mileage, dump fees, insurance, tools, and equipment were all 17 expenses incurred as a direct result of his work for FAS. 18 Fourth, like Garcia, because Rodriguez’s underlying claims survive, his derivative waiting 19 time penalty claim survives. 20 Accordingly, the motion is DENIED as to these causes of action. 21 III. DISMISSAL OF UCL CLAIMS 22 Both groups of plaintiffs assert claims under the UCL. The defendants moved to dismiss 23 the UCL claims with prejudice, and while the plaintiffs agree to dismiss, they request dismissal 24 without prejudice as to refiling in state court, citing Guzman v. Polaris Industries Inc., 49 F.4th 25 1308 (9th Cir. 2022). Compare Rodriguez Mot. 6:7-16:11 and Rodriguez Repl. 1:22-9:5 with 26 Rodriguez Oppo. 13:12-14:26.6 Though FAS made several arguments in its motion, after 27 1 Rodriguez requested to dismiss the UCL claims without prejudice, FAS’s arguments narrowed in 2 reply: first, this case is distinguishable from Guzman (which FAS did not address in its motions), 3 and so dismissal without prejudice is not warranted; and second, if the claim is dismissed with 4 prejudice and refiled in state court, it will lead to inefficient and duplicative litigation and FAS 5 will likely remove it back to federal court. 6 In Guzman, the Ninth Circuit built on its decision in Sonner v. Premier Nutrition 7 Corporation, 971 F.3d 834, 837 (9th Cir. 2020), where the plaintiff dismissed her sole state law 8 damages claim “[o]n the brink of trial” and instead proceeded on only her state law equitable 9 claims for restitution and injunctive relief. The Ninth Circuit held that the plaintiff “must establish 10 that she lacks an adequate remedy at law before securing equitable restitution for past harm under 11 the UCL” and another state statute. Id. at 844 (citations omitted). Given that requirement, the 12 Ninth Circuit upheld the district court’s dismissal of the plaintiff’s equitable claims. Id. 13 The plaintiff in Guzman brought UCL claims for equitable relief as well as two state law 14 claims for damages. 49 F.4th at 1310. The district court dismissed the damages claims as time- 15 barred and subsequently entered summary judgment for the defendant on the UCL claim, 16 reasoning that a plaintiff’s inability to bring damages claims due to the statute of limitations “does 17 not make the remedy [at law] inadequate” so as to permit a district court to exercise equitable 18 jurisdiction over the UCL claims under Sonner. Id. at 1310-11. The Ninth Circuit agreed that the 19 district court lacked equitable jurisdiction to hear the UCL claim because the plaintiff “had an 20 adequate legal remedy in his time-barred [damages] claim,” but held that the district court “should 21 have . . . dismissed [the plaintiff’s] UCL claim without prejudice for lack of equitable 22 jurisdiction.” Id. at 1313. The court explained that a district court must have equitable 23 jurisdiction before hearing the merits of an equitable claim, or else it cannot “make a merits 24 determination.” Id. at 1313-14. “In accordance with this general rule, the district court should 25 have dismissed [the plaintiff’s] UCL claim without prejudice to refiling the same claim in state 26 court.” Id. at 1314 (citations omitted). 27 In Guthrie v. Transamerica Life Insurance Co., 561 F. Supp. 3d 869, 872-74 (N.D. Cal. 1 equitable jurisdiction. There the plaintiff filed a single state law claim for equitable relief in state 2 court and the defendant removed it to federal court. Id. at 872. I found that I was required to have 3 subject matter and equitable jurisdiction to hear the equitable claim, but because the plaintiff 4 specifically asserted that he would not argue that he lacked adequate legal remedies, under 5 Sonner—and its requirement that a plaintiff establish a lack of adequate legal remedies for a 6 federal court to have equitable jurisdiction to hear a claim for equitable relief—I did not have 7 equitable jurisdiction. Id. at 875-76. Further, I reasoned that because the Supreme Court 8 explicitly permitted dismissal or remand for lack of equitable jurisdiction, remand to state court 9 was appropriate in that case. Id. at 879-80 (citing Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 10 718, 721 (1996)); see also Cates v. Allen, 149 U.S. 451 (1983). In dicta, I also explained that if I 11 dismissed the claim rather than remanding, “it seems that plaintiffs could simply refile their claims 12 in state court . . . . (Sonner, to put a fine point on it, was refiled in state court after the Ninth 13 Circuit affirmed dismissal.).” Guthrie, 561 F. Supp. 3d at 880. 14 Here, the plaintiffs do not assert or plead that they lack adequate legal remedies; rather, 15 they agree to voluntarily dismiss their equitable UCL claims without prejudice to refiling in state 16 court.7 See Rodriguez Oppo. By seeking voluntary dismissal, they confirm that they will not 17 plead a lack of adequate legal remedies for their equitable claims. And where a plaintiff does 18 not—or will not—plead that she lacks adequate legal remedies, federal courts do not have 19 equitable jurisdiction over the equitable claims. See Sonner, 971 F.3d at 839-41; Guthrie, 561 F. 20 Supp. 3d at 875-76. Here, because the plaintiffs intentionally do not plead or argue that they lack 21 adequate legal remedies, they do not meet the standard in Sonner, and I may not exercise equitable 22 jurisdiction to hear the claim. And because I may not exercise equitable jurisdiction, I cannot 23 reach the merits of the claim. See Guzman, 49 F.4th at 1313-14. Therefore, dismissal must be 24 without prejudice. 25 Dismissal without prejudice to refiling in state court is exactly what the Ninth Circuit 26 7 Unlike FAS’s cited cases, see Rodriguez Repl. 5:1-18, Rodriguez does not argue that the UCL’s 27 longer statute of limitations makes his legal remedies inadequate; he merely asks for dismissal of 1 ordered in Guzman, and it is permissible here for the same reasons.8 FAS asserts that Guzman is 2 not dispositive because the plaintiffs’ claims are not “connected to California public policy” and 3 because Guzman “dismissed the only claim” left in the federal action and did not allow for 4 separate parallel litigation in state court. See Rodriguez Repl. 2:11-4:28. But Guzman was an 5 equitable jurisdiction decision unrelated to the merits of the case,9 and it did not base its holding 6 on the fact that one claim remained. Rather, Guzman held that “a federal court that dismisses a 7 claim for lack of equitable jurisdiction necessarily declines ‘to assume the jurisdiction and decide 8 the cause,’” id. at 1314 (citations omitted), meaning that by dismissing the plaintiffs’ UCL claims 9 here, I am declining jurisdiction over those claims but not over the other claims that remain in this 10 case. It is not an issue of “get[ting] two bites at the litigation apple,” Rodriguez Repl. 1:23-24, 11 because the plaintiffs are not pursuing the UCL claims in two venues—the UCL claim is being 12 dismissed so they can refile in state court, just as the court in Guzman ordered. 13 Additionally, even if I may exercise supplemental or diversity jurisdiction over the UCL 14 claim,10 see Rodriguez Repl. 7 n.4; Def. Supp. Br. 3:16-22, that merely means that I have subject 15 matter jurisdiction—it does not bear on my equitable jurisdiction to hear the claim, see Guthrie, 16 561 F. Supp. 3d at 873-74 (outlining historical and practical differences between subject matter 17 and equitable jurisdiction); see also Yuba Consol. Gold Fields v. Kilkeary, 206 F.2d 884, 887 (9th 18 Cir. 1953) (differentiating between subject matter and “equity” jurisdiction). 19 This jurisdictional question is relevant to FAS’s second argument, that dismissal of the 20 8 Other district courts have dismissed equitable claims without prejudice when the plaintiff so 21 requested or consented. See, e.g., Ary v. Target Corp., No. 22-CV-02625-HSG, 2023 WL 2622142, at *5 (N.D. Cal. Mar. 23, 2023); Gomez v. Elite Lab. Servs. Weeklys, Ltd., No. 21-CV- 22 03860-MMC, 2023 WL 2214172, at *8 (N.D. Cal. Feb. 24, 2023); Droesch v. Wells Fargo Bank, N.A., No. 20-CV-06751-JSC, 2022 WL 17669713, at *7 (N.D. Cal. Dec. 14, 2022). 23

9 It is worth noting that FAS’s public policy argument is unpersuasive. FAS argues that unlike 24 Guzman, this case does not involve “enjoin[ing] fraudulent business practices that endangered the public at large.” Rodriguez Repl. 4:18-21. The complaint’s allegations of misclassification and 25 wage theft are, of course, matters of utmost public importance that affect business practices, individuals, communities, and the broader economy of the state as a whole. 26

10 Even if I instead have subject matter jurisdiction under CAFA, see Rodriguez Repl. 7:19-8:3, of 27 which I am not convinced, I still must have equitable jurisdiction to hear equitable claims. See 1 UCL claim will inevitably lead to “jurisdictional ping pong” because FAS will remove any UCL 2 claim refiled in state court to federal court. See Rodriguez Repl. 7:15-9:5; see also Def. Supp. Br. 3 4 n.2. At that point in litigation, there would be a single state law claim for equitable relief 4 removed to federal court, the plaintiff could not (and likely would not) assert lack of adequate 5 legal remedy, and the federal court would not have equitable jurisdiction to hear the claim—a 6 situation on all fours with Guthrie. And so under Guthrie, the case would be remanded. FAS’s 7 removal of any refiled UCL claim certainly would be jurisdictional ping-pong—but it would be 8 frivolous and unnecessary, given the lack of good faith belief that this court would have 9 jurisdiction over the removal. See Guthrie, 561 F. Supp. 3d at 875-76, 880; see also Cates, 149 10 U.S. at 460-61; Twist v. Prairie Oil & Gas Co., 274 U.S. 684, 690 (1927). Further, it does not 11 matter which federal court or judge hears the removed case, because under Guzman “a federal 12 court’s pre-merits determination to withhold relief” by dismissing a claim for lack of equitable 13 jurisdiction—in other words, exactly my decision here—“is binding on other federal courts.” 14 Guzman, 49 F.4th at 1314. Accordingly, it seems that if FAS removed the UCL claim back to 15 federal court, that court would be bound by my decision declining to exercise equitable 16 jurisdiction over the claim. 17 Finally, FAS argued for the first time in reply that the case must be dismissed with 18 prejudice under the Colorado River doctrine and related considerations concerning parallel 19 litigation in state and federal courts. See Rodriguez Repl. 5:21-6:22. The Supreme Court in 20 Colorado River explained that federal courts have a “virtually unflagging obligation . . . to 21 exercise the jurisdiction given to them” and so dismissals or stays are warranted “[o]nly [for] the 22 clearest of justifications.” Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 23 817-19 (1976). 24 In supplemental briefing, the plaintiffs correctly point out that Colorado River 25 contemplated a federal court staying or dismissing a case pending resolution of a state suit, which 26 is different from the situation here, where the plaintiffs seek to dismiss a single claim without 27 prejudice to refiling in state court. See United States v. State Water Res. Control Bd., 988 F.3d 1 U.S. 1, 9-12 (1983)). Even if I consider the spirit and goals of the doctrine, I find a clear 2 justification is present here: because the plaintiffs failed to plead that they lack an adequate legal 3 remedy, “traditional equitable principles bar [me] from entertaining” the UCL claim. Guthrie, 561 4 F. Supp. 3d at 874. 5 Each argument in FAS’s supplemental brief asserts that judicial efficiency and related 6 considerations, including those under the Colorado River doctrine, counsel against permitting 7 parallel litigation in state and federal court. See Def. Supp. Br. 3:23-5:9. But parallel litigation 8 itself is not a reason to dismiss the case with prejudice. See Noel v. Hall, 341 F.3d 1148, 1159 9 (9th Cir. 2003) (“The rule that permits simultaneous litigation in state and federal court of 10 overlapping and even identical cases is deeply rooted in our system.”); see also Seneca Ins. Co., 11 Inc. v. Strange Land, Inc., 862 F.3d 835, 841 (9th Cir. 2017) (explaining that “parallel state 12 litigation” was explicitly contemplated and permitted by Colorado River). And while I understand 13 FAS’s concerns, it can raise those issues to the state court and seek a stay, streamlined discovery 14 proceedings, or any number of alternative processes that the state court may be able to consider 15 given its jurisdiction to hear the claim. The point of Guzman, Sonner, and Supreme Court 16 precedent dating back to the 1800s is that I may not exercise equitable jurisdiction over these 17 contested claims; I cannot consider the merits of the argument, despite FAS’s assertions that it 18 would be more efficient. 19 Accordingly, the UCL claims in both cases are DISMISSED without prejudice. 20 CONCLUSION 21 For those reasons, the motions are GRANTED in part and DENIED in part. For any 22 motion to dismiss that was filed after June 6, 2023, the date of my Rule 1 Order, within seven days 23 of the date of this Order, the parties shall meet and confer to confirm which motions are mooted 24 by this Order and which motions raised new or different issues from the ones covered by this 25 Order. For the mooted motions, defense counsel shall file a notice of withdrawal of motion for 26 each of those cases. For any remaining new or different issues, counsel shall meet and confer to 27 1 agree upon a briefing and hearing schedule. 2 IT IS SO ORDERED. 3 Dated: August 9, 2023 4 . 5 liam H. Orrick 6 United States District Judge 4 8 9 10 11 12

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