United States District Court, W.D. Washington
HOWARD BERRY and DAVID BERRY, individually and on behalf of all others similarly situated, Plaintiffs,
TRANSDEV SERVICES, INC., et al., Defendants.
Honorable Richard A. Jones United States District Judge
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.
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
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.
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.
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. ¶
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.
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. ¶¶
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.
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.
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.
Transit moves to dismiss Transdev's cross-claim under
Rule 12(b)(6). Dkt. # 30. Transdev opposes the motion. Dkt. #
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).
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