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Brennan v. New 4125 LLC

United States District Court, D. Arizona

May 10, 2019

Kwen Brennan, et al., Plaintiffs,
New 4125 LLC, et al., Defendants.



         Now pending before the Court are (1) Plaintiff Kwen Brennan’s (“Plaintiff”) Motion for Leave to File a First Amended Complaint (Doc. 54) and (2) Defendants’ Motion to Strike (Doc. 59). Both motions are fully briefed and nobody has requested oral argument. As explained below, Plaintiff’s motion will be granted and Defendants’ motion will be denied.


         A. The Initial Complaint

         The initial complaint in this case was filed on June 5, 2018. (Doc. 1.) In it, Plaintiff alleges that she worked as an exotic dancer at “Scores Phoenix Gentlemen’s Club” (hereinafter “Scores”), an adult entertainment club operated by Defendants,[1] that Defendants “refused to compensate her at the applicable minimum wage and overtime rate,” and that “[i]n fact, Defendants refused to compensate Plaintiff whatsoever for any hours worked,” such that her “only compensation was in the form of tips from club patrons,” which she “was required to divide . . . with Defendants and other employees who do not customarily receive tips.” (Id. ¶¶ 1, 31.) The complaint is styled as a collective action under the Fair Labor Standards Act (“FLSA”), with Plaintiff seeking to assert claims “on behalf of all other similarly situated employees, current and former, of Defendants.” (Id. ¶ 4.)

         Notably, this complaint doesn’t allege, with specificity, when Plaintiff actually worked at Scores-it merely alleges that Plaintiff was “employed as an exotic dancer at Defendants’ adult entertainment club during the statutory time period.” (Id. ¶ 33.) Other portions of the complaint indicate that “the statutory time period” is the three-year period preceding the date on which the complaint was filed (i.e., June 5, 2015 through June 5, 2018). (Id. ¶ 11, 65, 79.)

         B. The Dismissal Order

         On March 13, 2019, the Court issued an order (“the Order”) dismissing the complaint with leave to amend. (Doc. 52.) Although the Order rejected several of Defendants’ other objections to the complaint, it concluded the complaint was deficient under Landers v. Quality Communications, Inc., 771 F.3d 638 (9th Cir. 2014), because “[i]t merely alleges that Plaintiff worked for the Corporate Defendants at some unspecified point during the three-year period between June 2015 and June 2018 and doesn’t identify a particular workweek in which an FLSA violation is alleged to have occurred. Moreover, the affidavit Plaintiff filed as an exhibit to her opposition brief still doesn’t provide the level of detail required by Landers-it only identifies five particular dates, over a five-month period, on which Plaintiff claims to have worked and doesn’t say how many hours she worked each day.” (Doc. 52 at 10.)

         The Order also specified that “[t]he dismissal will be without prejudice because Plaintiff may be able to cure the Landers deficiency by alleging additional facts.” (Id. at 11.) Thus, the Order authorized Plaintiff to file an amended complaint within 30 days without the need to seek further leave of the Court. (Id. at 13 [“Plaintiff shall have 30 days from today’s date to file an amended complaint.”].) Finally, the Order also recommended that the amended complaint “include specific factual allegations that support Plaintiff’s contention she was an employee.” (Id.)

         C. Plaintiff’s April 4, 2019 Filing

         On April 4, 2019, Plaintiff filed a “Motion for Leave to File First Amended Complaint.” (Doc. 54.) The motion asserts that Plaintiff “believes she has the right to amend based on [the Court’s March 13, 2019 Order at Doc. 52] granting Plaintiff 30 days to file an amended complaint but is filing this Motion for Leave as a precautionary motion.” (Id. at 1.) The motion later clarifies that “Plaintiff intends to amend the complaint per the Court’s order” and additionally seeks to add a new named Plaintiff, Shayla Maynard, to Plaintiff’s complaint. (Id. at 2.) Pursuant to LRCiv 15.1(a), Plaintiff attached, as an exhibit to her motion, a copy of the proposed amended complaint, which indicates how it differs from the original complaint by striking through omitted text and underlining proposed new text (i.e., “redlining” it). (Doc. 54-1.) The proposed amended complaint includes newly-named plaintiff Maynard. (Id.)

         D. Plaintiff’s April 11, 2019 Filing

         On April 11, 2019, Plaintiff filed a different redlined amended complaint, with an explanation that this amended complaint was filed “pursuant to the Court Order issued on March 13, 2019.” (Doc. 56 at 2.) This amended complaint did not add Maynard as a plaintiff. Plaintiff further explained that because the April 11, 2019 amended complaint- for which leave to amend had already been granted-became the First Amended Complaint (“FAC”) upon being filed, and because she still wanted the Court to consider her motion for leave to amend to add a newly-named plaintiff (Doc. 54), the title of that previously-filed motion for leave to amend should be changed to read “Plaintiff’s Motion for Leave to File a Second Amended Complaint.” (Doc. 56 at 2.)

         The FAC filed on April 11, 2019 differs from the original complaint in three significant respects. First, the FAC eliminates any allegation that Defendants failed to pay overtime wages in violation of the FLSA, such that the only theory of recovery in the FAC is that Defendants failed to comply with the FLSA’s minimum wage requirements. ...

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