1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 AMIT KANSUPDA, Case No. 4:18-cv-02133-KAW

8 Plaintiff, ORDER RE PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT 9 v. Re: Dkt. No. 38 10 BAPTISTA DELIVERY SERVICES, LLC, et al., 11 Defendants. 12 13 On February 19, 2020, Plaintiff Amit Kansupda filed a motion for default judgment against 14 Defendants Baptista Delivery Services, LLC and Baptista Enterprises Transporting and Towing, 15 LLC (collectively “Defendants”). (Pl.’s Mot. for Default J., Dkt. No. 38.) This is Plaintiff’s 16 second motion for default judgment, as the first was denied due to Plaintiff’s failure to correctly 17 allege Plaintiff’s dates of employment. (See Order Den. Pl.’s Mot. for Default J. at 1, Dkt. No. 18 28.) Having considered the filings and the relevant legal authority, the Court finds that Plaintiff’s 19 motion for default judgment is still defective.1 20 First, Plaintiff again alleges the wrong dates of employment. In the operative complaint, 21 Plaintiff alleges that he worked “[f]rom approximately November 2016 to February 2017 and from 22 March 2017 to approximately April 21, 2017.” (First Am. Compl. (“FAC”) ¶ 10, Dkt. No. 29.) 23 These are the same dates the Court found problematic in the prior motion for default judgment 24 because Plaintiff states in his declaration that he was employed “from April 15, 2016 to January 25 23, 2017 and from March 14, 2017 until April 21, 2017.” (Kansupda Decl. ¶ 2, Dkt. No. 38-2; see 26 also Order Den. Pl.’s Mot. for Default J. at 1.) Additionally, Plaintiff’s damages are calculations 27 1 based on Plaintiff’s employment from August 15, 2016. (Burton Decl., Exh. C at 1.) Thus, either 2 Plaintiff’s complaint, declaration, or damages calculations are incorrect. This is inadequate to 3 satisfy the standards for a motion for default judgment. 4 Second, Plaintiff fails to allege adequate facts to support his claims. In reviewing a motion 5 for default judgment, the Court takes “the well-pleaded factual allegations in the complaint as 6 true.” DirecTV, Inc. v. Huynh,

(9th Cir. 2007) (internal quotation omitted). 7 The defendant, however, “is not held to admit facts that are not well-pleaded or to admit 8 conclusions of law.”

(internal quotation omitted). 9 Here, Plaintiff asserts that he was misclassified by Defendants. In support, however, 10 Plaintiff cites almost no factual allegations;2 for example, with respect to control, Plaintiff alleges: 11 “Defendants had the right to control, and did control, Plaintiff as to the work done and the manner 12 and means in which it was performed . . . .” (FAC ¶ 11i.) There are no facts regarding that 13 control, such as how Defendants actually controlled Plaintiff – such as, for example, by requiring 14 Plaintiff to accept assignments or shifts, dictating Plaintiff’s delivery routes, or directing how 15 Plaintiff dressed or behaved while delivering product. At most, Plaintiff cites to a December 16, 16 2016 document which states “Four days on 2 days off,” “Changes must be approved a week 17 ahead,” “Leave the truck at least ¾ full-keep receipts,” and to call the police and take pictures if 18 there were accidents. (FAC ¶ 12.) Plaintiff provides no explanation for how these instructions 19 were applied to his work in the operative complaint, nor does he cite these instructions in the 20 motion for default judgment, let alone explain how these instructions demonstrate the requisite 21 control. 22 Likewise, it is unclear that Plaintiff’s conclusory allegation that he “frequently worked 23 more than eight hours in a workday and forty hours in a workweek,” but “was not paid overtime 24 wages,” could support an overtime claim. In Landers v. Quality Communications, Inc., the Ninth 25 Circuit found that “at a minimum, a plaintiff asserting a violation of the FLSA overtime provisions 26

27 2 The Court finds it particularly noteworthy that Plaintiff cited no facts in his motion for default 1 must allege that she worked more than forty hours in a given workweek without being 2 compensated for the hours worked in excess of forty during that week.”

(9th 3 Cir. 2014). Such allegations must provide “sufficient detail about the length and frequency of 4 [the] unpaid work to support a reasonable inference that he worked more than forty hours in a 5 given week.”

. Thus, the Ninth Circuit affirmed the dismissal of the plaintiff’s overtime 6 claim where the plaintiff failed to allege “any detail regarding a given workweek when [the 7 plaintiff] worked in excess of forty hours and was not paid overtime for that given 8 workweek . . . ”

Here, Plaintiff provides no factual allegations that would allow the Court to 9 find that he worked overtime. Additionally, it is not clear Plaintiff has provided sufficient facts to 10 show that Defendants are joint operators, such that both Defendants are liable for damages. 11 Third, Plaintiff’s damages calculations do not appear to be tenable. For example, 12 Plaintiff’s PAGA penalties for inaccurate wage statements and failure to reimburse expenses are 13 based on Defendants having paid its employees approximately once a week, and Defendants 14 having employed five employees. (Pl.’ Mot. for Default J. at 12.) There is nothing, however, to 15 support Plaintiff’s estimate that Defendant had five employees during the relevant period. At 16 most, Plaintiff states that he worked with four other drivers; this does not mean, however, that 17 Defendants continued to employ five employees after Plaintiff stopped working for Defendants in 18 February 2017. (See Kansupda Decl. ¶ 11.) It is not clear how the Court can accept this 19 assumption in calculating PAGA penalties without any evidence, especially when Plaintiff seeks 20 PAGA penalties starting from February 2017. 21 Because Plaintiff’s motion for default judgment is defective, the Court will give Plaintiff 22 the option of voluntarily withdrawing the motion for default judgment and filing a second 23 amended complaint within 21 days of this order. Plaintiff’s amended complaint and any renewed 24 motion for default judgment must address the issues raised in this order. If Plaintiff does not wish 25 to withdraw the motion for default judgment, the Court will reassign this case to a district judge 26 // 27 // 1 with the recommendation that the motion for default judgment be denied for the reasons stated 2 above. 3 IT IS SO ORDERED. . 4 || Dated: May 22, 2020 K antl Toche KANDIS. A. WESTMORE 5 United States Magistrate Judge 6 7 8 9 10 11 12

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