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Berry v. Transdev Services, Inc.

United States District Court, W.D. Washington

April 13, 2017

HOWARD BERRY and DAVID BERRY, individually and on behalf of all others similarly situated, Plaintiffs,
TRANSDEV SERVICES, INC., et al., Defendants.


          The Honorable Richard A. Jones United States District Judge


         This matter comes before the Court on Defendant First Transit, Inc.'s (“First Transit”) Motion to Dismiss Plaintiffs' First Amended Complaint for Failure to State a Claim (Dkt. # 26), Motion to Dismiss Defendants/Third-Party Plaintiffs Transdev Services, Inc. and Transdev North America, Inc.'s (collectively, “Transdev”) Cross-Claim for Failure to State a Claim (Dkt. # 30), and Motion for Protective Order Staying Discovery as to First Transit (Dkt. # 39). For the reasons that follow, the Court DENIES First Transit's motion to dismiss Plaintiffs' complaint, GRANTS in part and DENIES in part First Transit's motion to dismiss Transdev's cross-claims, and DENIES as moot First Transit's motion for protective order.


         The Court describes the facts as Plaintiffs Howard Berry and David Berry allege them in their First Amended Class Action Complaint, Dkt. # 22 (“Am. Compl.”), and as Transdev alleges them in its Answer to First Amended Complaint and Cross-Claim, Dkt. # 25 (“Cross-Claim”), suggesting no opinion on whether these allegations will prove true. The Court cites the numbered paragraphs of the complaint using “¶” symbols.

         A. Plaintiffs' Complaint

         Plaintiffs allege as follows. Under separate contracts with King County Metro, Transdev and First Transit collaborate to provide paratransit services for disabled King County residents. Am. Compl. ¶ 1.1. Transdev is responsible for hiring and deploying the drivers. First Transit develops schedules and routes. ¶ 5.7. Drivers are required to communicate with First Transit to stay apprised of scheduling and route changes. ¶ 5.9.

         To schedule a ride, a disabled King County resident must call a reservation line operated by First Transit. ¶ 5.15. First Transit then schedules a driver to arrive within a thirty-minute window. Id. At the beginning of their shift, drivers receive a manifest identifying passengers, their locations, and their desired pickup times. ¶ 5.18.

         Before March 1, 2015, Transdev and First Transit did not schedule breaks for their drivers. ¶ 5.21. Because of their demanding schedules, the drivers had no opportunity to take breaks. ¶ 5.22. Although the drivers complained, Transdev and First Transit ignored their complaints. ¶ 5.23.

         Since March 1, 2015, Transdev and First Transit have scheduled rest breaks, but in a manner that renders those breaks meaningless. The first break is typically scheduled for the first fifteen minutes of a driver's shift, while the second is scheduled for the last fifteen minutes. ¶ 5.25. Scheduling breaks during these times precludes drivers from taking them. ¶ 5.26. The drivers have complained, but to no avail. ¶ 5.27.

         Plaintiffs are drivers for Transdev and First Transit. On July 14, 2015, they filed the instant action against Transdev in King County Superior Court. Dkt. # 1 at 13. Transdev removed the action to this Court. Id. at 1. Plaintiffs then amended their complaint to add First Transit as a defendant. Dkt. # 22. They allege five causes of action: (1) failure to provide rest breaks in violation of the Industrial Welfare Act (“IWA”), chapter 49.12 RCW, and WAC 296-126-092; (2) payment of wages less than entitled in violation of the Minimum Wage Act (“MWA”), RCW 49.46.090; (3) failure to pay overtime in violation of the MWA, RCW 49.46.130; (4) breach of contract against Transdev; (5) breach of contract against First Transit; and (6) willful refusal to pay wages in violation of the Wage Rebate Act (“WRA”), RCW 49.52.050. Am. Compl. ¶¶ 6.1-11.9.

         First Transit moves to dismiss the amended complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. Dkt. # 26. Plaintiffs oppose the motion. Dkt. # 29.

         B. Transdev's Cross-Claim

         Transdev alleges as follows. Although Transdev is responsible for employing and deploying the drivers, First Transit is exclusively responsible for all scheduling, route management, driver dispatch, and rest break compliance. Cross-Claim ¶¶ 4-6. Accordingly, the ability of drivers to take rest breaks is wholly dependent upon First Transit's performance of its contractual obligations. ¶ 6.

         On this basis, Transdev alleges two causes of action against First Transit: (1) breach of contract; and (2) if a breach of contract claim cannot be sustained for lack of contractual privity between Transdev and First Transit, a claim premised on Transdev's status as a third-party beneficiary to the contract between First Transit and King County Metro. ¶¶ 7-18.

         First Transit moves to dismiss Transdev's cross-claim under Rule 12(b)(6). Dkt. # 30. Transdev opposes the motion. Dkt. # 33.


         Rule 12(b)(6) permits a court to dismiss a complaint for failure to state a claim. The rule requires the court to assume the truth of the complaint's factual allegations and credit all reasonable inferences arising from those allegations. Sanders v. Brown, 504 F.3d 903, 910 (9th Cir. 2007). A court “need not accept as true conclusory allegations that are contradicted by documents referred to in the complaint.” Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). The plaintiff must point to factual allegations that “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 568 (2007). If the plaintiff succeeds, the complaint avoids dismissal if there is “any set of facts consistent with the allegations in the complaint” that would entitle the plaintiff to relief. Id. at 563; Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).

         When resolving a motion to dismiss, a court typically cannot consider evidence beyond the four corners of the complaint. “A court may, however, consider certain materials-documents attached to the complaint, documents incorporated by reference in the complaint, or matters of judicial notice-without converting the motion to dismiss into ...

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