Opinion
6:21-cv-00842-MK
11-28-2022
JORDAN BOGGS, on behalf of himself and all others similarly situated, Plaintiff, v. ONITY, INC., Defendant.
FINDINGS AND RECOMMENDATION
MUSTAFA T. KASUBHAI UNITED STATES MAGISTRATE JUDGE
Plaintiff Jordan Boggs filed this putative class action against Defendant Onity alleging violations of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201, et seq.; Oregon's wage-and-hour laws, Or. Rev. Stat. (“ORS”) §§ 652.140, 652.610, and 653.010, et seq.; a claim for unjust enrichment under state law; and for declaratory relief. See Second Am. Compl., ECF No. 33 (“SAC”). Defendant moves to dismiss Count II of the SAC under Federal Rule of Civil Procedure 12(b)(6), which Plaintiff opposes. Def.'s Mot. Dismiss, ECF No. 34 (“Def.'s Mot.”); Pl.'s Resp. Mot. Dismiss, ECF No. 37 (“Pl.'s Opp'n”). For the reasons below, Defendant's motion to dismiss should be DENIED.
The following allegations are taken from the SAC and presumed true at this early stage of the proceedings. Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005) (“When ruling on a motion to dismiss, we accept all factual allegations in the complaint as true and construe the pleadings in the light most favorable to the nonmoving party.”).
Plaintiff brought this putative class action to obtain monetary, injunctive, and declaratory relief resulting from Defendant's misclassification of Plaintiff and other installer-trainers as independent contractors. SAC ¶ 1, ECF No. 33.
Plaintiff is an Oregon resident and worked for Defendant for seven years as an installer trainer. Id. ¶ 5. Defendant categorized Plaintiff, and members of the putative class, as independent contractors. Id.; see also ¶ 61. Installers install lock systems for customers; trainers train customers in the usage of those products. Id. Some installers also work as trainers. Id. Plaintiff alleges that the putative class members were misclassified as independent contractors when in fact they performed the work of employees. Id.
Defendant is a Delaware corporation whose current principal place of business is in Salem, Oregon. Id. ¶ 6. Defendant installs and maintains locks and automatic lock systems in commercial and public buildings. Id. ¶ 1. Defendant relies on installers to install lock systems, such as remote locks. Id.
Plaintiff challenges both the classification of installers as independent contractors and Defendant's denial to Plaintiff and those similarly situated of the rights, obligations, privileges, and benefits, including overtime compensation, owed to them as employees under state and federal law. Id. ¶ 4. A substantial part of the events or omissions giving rise to Plaintiff's and the putative class members' claims occurred in Oregon. Id. ¶ 8.
In February 2013, Plaintiff began working for Defendant in Montana. Id. ¶ 9. Defendant classified Plaintiff as an independent contractor. Id. Plaintiff worked with his father, Kevin Boggs-who Defendant classified as a full-time employee (“FTE”)-and performed substantially the same tasks. Id. Kevin Boggs trained Plaintiff. Id. ¶ 11. Plaintiff otherwise worked alone and did not have any helpers or employees. Id. ¶ 10.
On March 4, 2013, Plaintiff traveled to Cabazon, California, to shadow Kevin Boggs and assist him in the performing duties on behalf of Defendant at The Morongo Casino and Spa Resort. Id. ¶ 12. On March 11, 2013, Plaintiff traveled to Billings, Montana, to complete more work for Defendant. Id. ¶ 13.
In 2014, United Technologies acquired Defendant. Id. ¶ 14. Following the acquisition, Defendant relocated its corporate headquarters from Atlanta, Georgia, to Salem, Oregon. Id. Defendant instituted various policy changes after the acquisition. Id.
For each year from 2014 to 2020, Plaintiff traveled to various worksites to complete his job duties for Defendant. Id. ¶ 15. Plaintiff performed some portion of his work in Oregon, including trainings and certification classes at Defendant's headquarters in Salem, Oregon. Id. Defendant required Plaintiff to attend these classes. Id. Plaintiff also worked at other sites for Defendant in Oregon, including, but not limited to, a job that he performed in Ontario, Oregon, between September 4-5, 2019. Id. The SAC alleges that Plaintiff entered into a contract for the services he performed in Oregon and received payments for services performed in Oregon. Id.
Before Plaintiff's arrival at sites to complete a training or installation, Defendant delivered the necessary equipment for completing the assigned task. Id. ¶ 16. For trainings, Defendant also determined the presentation and information that Plaintiff would give to customers and provided checklists. Id.
Both trainers and installers were subject to the same contractual terms pursuant to Defendant's Installer and Trainer Agreement. Id. Defendant exercised control over the day-today performance of their job's, paid them in the same fashion, and otherwise treated trainers and installers the same. Id.
On February 8, 2015, Defendant revised its Environmental Health and Safety Policy. Id. ¶ 17. The policies were mandatory for installers and covered safety requirements and standards, including work attire, footwear, equipment, and the authority to prohibit music on jobsites. Id. That same day, Defendant also revised its Hotel Reimbursement and Reservation Policy. Id. ¶ 18. The policy required itemized expenses, limited expenses to $100.00/night, and required prior approval for any exceptions. Id.
On March 5, Defendant revised its Pre-Site Procedure Requirements. Id. ¶ 19. The policy mandated communication timeframes, the method and manner of jobsite preparation, and the method and manner of work upon arrival at the jobsite. Id.
On March 9, Defendant revised its Billing Policies. Id.¶ 20. The policy prescribed the protocols for billing customers and outlined what installer and trainers could bill Defendant for reimbursements. Id. That same day, Defendant also revised its Daily Update Policy. Id. ¶ 21. Defendant mandated daily updates while on jobsites, including mandatory status updates throughout the work process at each jobsite. Id. Defendant controlled all scheduling changes and required updates to be sent at an approved time of day. Id. Defendant also prohibited leaving jobsites without obtaining prior approval. Id.
On March 16, Defendant revised its Crew Leader Policies. Id. ¶ 22. The policy required attendance at Defendant's biennial re-certification classes, including Plaintiff's attendance at a class at Defendant's headquarters in Salem, Oregon, on March 19. Id. ¶¶ 22-23. At this class, a PowerPoint slideshow listed Defendant's administrative policies. Id. ¶ 23. In the presentation, Defendant increased restrictions over dress code and body piercings, and prohibited alcohol on jobsites. Id. Defendant did not compensate Plaintiff for attending these classes nor did it reimburse him for travel expenses. Id.
On October 26, 2017, Ashley Burger, who worked as scheduler for Defendant, instructed Plaintiff to sign a new contract by November 1. Id. ¶ 24. The contract permitted Defendant access to Plaintiff's operating sites, personnel files, books, and records. Id. The next day, Burger emailed Plaintiff with updated policies. Id. ¶ 25. The email included instructions that required Plaintiff to wear a Defendant-supplied certification badge at all times and prohibited the use of tobacco on jobsites. Id.
On February 28, 2018, Burger emailed Plaintiff about providing him with supply kits of items to take with him to jobsites. Id. ¶ 26. In June 2018, Defendant shipped Plaintiff equipment to carry with him to each jobsite. Id. ¶ 29.
On August 22, 2018, Plaintiff met with Nicholas Ladwig, who worked as an installations manager for Defendant, about a bounced check Defendant issued. Id. ¶ 27. Ladwig and Plaintiff discussed Defendant's failure to regularly pay on time. Id. In September 2018, Defendant began paying Plaintiff through direct deposit. Id. ¶ 28.
On July 24, 2019, Marianne Holgate, who worked as an installations manager for Defendant, emailed Plaintiff a newly revised air travel policy. Id. ¶ 30. The policy outlined the timeframe for booking flights-within one week of a “Notice of Confirmation Date from Onity”-and required purchasing roundtrip tickets. Id.
In August 2019, Holgate called Plaintiff about a recent job. Id. ¶ 31. On the call, she prohibited Plaintiff from distributing business card for his photography business to hotel staff. Id.
On September 14, 2020, Holgate emailed Plaintiff with further revised “policies and procedures.” Id. ¶ 32. These policies included a forty-eight-hour deadline to submit invoices, a requirement for immediate communication when scheduling, control over start time, and additional control over scheduling. Id. Two days later, Gregory Stevenson, who worked as a field service representative for Defendant, emailed Plaintiff additional communication protocols and approval requirements for performing work tasks. Id. ¶ 33.
On October 5, Defendant scheduled Plaintiff to work at a Homewood Suites located in Livermore, California, to begin on October 18. Id. ¶ 34. On October 9, Stevenson emailed Plaintiff reminding him of Defendant's company policies. Id. ¶ 35. In the email, Holgate explained that Plaintiff needed to provide daily updates while on site. Id. Defendant also required Plaintiff to complete surveys after leaving each jobsite. Id.
On October 12, Plaintiff received an email that changed the Homewood Suites Project's work dates to October 22 and 23. Id. ¶ 36. Defendant typically kept the same trainer assigned to the work when schedule changes occurred. Id.
On October 19, Plaintiff emailed Holgate and demanded reclassification as an employee. Id. ¶ 37. Plaintiff also demanded backpay, payroll benefits, and other benefits that employees received. Id. Plaintiff calculated the approximate value of each lost wage and benefit and demanded payment for the estimated total. Id.
The next day, Plaintiff emailed Kriss Fincher, who worked as a scheduler for Defendant, as well as Anna Beseda, Casey Heitz, and Johnna Hillier, who worked as project coordinators for Defendant, about the Homewood Suites Project, scheduled for October 22 and 23. Id. ¶ 38. In the email, Plaintiff informed them that he had followed up with a representative from the Homewood Suites and that he had been informed that the hotel's open date had been moved to October 27, 2020. Id. Plaintiff asked Defendant to provide notice when a job he was scheduled to work gets rescheduled. Id. Plaintiff also called Hillier to follow-up on his email and ask about the workdays for the Homewood Suites Project. Id. ¶ 39. Hillier explained that she had checked their records and confirmed that the hotel's open date had been pushed back to October 27. Id. She further explained that she had sent the new request to Fincher earlier that day and that Fincher had been busy training someone. Id.
On October 21, Plaintiff received a response from Renee Stark, who worked in human resources for Defendant. Id. ¶ 40. Stark explained that they were looking into Plaintiff's misclassification concerns and would get back to him in due course. Id.
On October 22, Plaintiff emailed Fincher and Hillier and said that he never received a new date request for the Homewood Suites Project. Id. ¶ 41. Plaintiff asked that they send the request so that he could plan accordingly as the date was arriving soon. Id.
On October 23, Plaintiff emailed Fincher and Hillier again, and informed them that he still had not received information related to the Homewood Suites Project. Id. ¶ 42. Later that day, Holgate emailed Plaintiff informing him that a different trainer had been scheduled for the work at the Homewood Suites Project. Id. ¶ 43.
On October 27, Stark emailed Plaintiff and said that they had reviewed his claim and determined that he was correctly classified as an independent contractor. Id. ¶ 44.
On December 30, Plaintiff resigned from his position. Id. ¶ 45. Plaintiff alleges he was not paid all wages due and owed to him at that time and has not received all wages due and owed. Id.
From 2014 to 2020, Plaintiff routinely worked in excess of 40 hours a week, including, but not limited to, the following weeks, August 18-24, 2019, September 22-28, 2019, and November 10-16, 2019. Id. ¶ 46.
Plaintiff also seeks to bring a class action claim for violating the FLSA and state law on behalf of himself and all similarly situated individuals. Id. ¶ 49. The putative class is defined as:
All persons who are or have performed work as “installers” or “trainers” for Onity and who are or were misclassified as independent contractors during the period commencing three years prior to the filing of this Complaint through the trial in this action.Id. Plaintiff further alleges that he and “and members of the FLSA Collective Class routinely worked in excess of forty (40) hours in a week without overtime compensation during the Class Period.” Id. ¶ 52.
STANDARD OF REVIEW
A motion to dismiss under Rule 12(b)(6) for failure to state a claim may be granted only when there is no cognizable legal theory to support the claim or when the complaint lacks sufficient factual allegations to state a facially plausible claim for relief. Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010). In evaluating the sufficiency of a complaint's factual allegations, the court must accept as true all well-pleaded material facts alleged in the complaint and construe them in the light most favorable to the non-moving party. Wilson v. Hewlett-Packard Co., 668 F.3d 1136, 1140 (9th Cir. 2012); Daniels-Hall v. Nat'l Educ. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010). To be entitled to a presumption of truth, allegations in a complaint “may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). All reasonable inferences from the factual allegations must be drawn in favor of the plaintiff. Newcal Indus. v. Ikon Office Solution, 513 F.3d 1038, 1043 n.2 (9th Cir. 2008). The court need not, however, credit the plaintiff's legal conclusions that are couched as factual allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009).
A complaint must contain sufficient factual allegations to “plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation.” Starr, 652 F.3d at 1216. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). “The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Mashiri v. Epstein Grinnell & Howell, 845 F.3d 984, 988 (9th Cir. 2017) (quotation marks omitted).
DISCUSSION
Count II of the SAC asserts claims under Oregon's wage-and-hour laws. SAC ¶¶ 76-84, ECF No. 33. Plaintiff alleges Defendant failed to pay Plaintiff and other members of the putative class their wages due for all hours worked upon their termination. ¶ 79. Plaintiff also alleges Defendant failed to pay Plaintiff and other members of the putative class overtime. Id. Defendant moves to dismiss Count II of the SAC arguing that Plaintiff failed to adequately plead that he was an “employee” within the meaning of ORS § 652.310(2). Def.'s Mot. 1-2, ECF No. 34.
I. Applicable Definition of “Employee”
Defendant argues that to properly state a claim for violating the Oregon wage-and-hour laws, a plaintiff must first allege they are an “employee” as defined by ORS § 652.310(2). Id. That statute provides:
As used in ORS 652.310 to 652.414, unless the context requires otherwise:
(1) “Employer” means any person who in this state, directly or through an agent, engages personal services of one or more employees and includes any successor to the business of any employer, or any lessee or purchaser of any employer's business property for the continuance of the same business, so far as such employer has not paid employees in full. “Employer” includes the State of Oregon or any political subdivision thereof or any county, city, district, authority, public corporation or entity and any of their instrumentalities organized and existing under law or charter but does not include:
(a) The United States.
(b) Trustees and assignees in bankruptcy or insolvency, and receivers, whether appointed by federal or state courts, and persons otherwise falling under the definition of employers so far as the times or amounts of their payments to employees are regulated by laws of the United States, or regulations or orders made in pursuance thereof.
(2) “Employee” means any individual who otherwise than as copartner of the employer or as an independent contractor renders personal services wholly or partly in this state to an employer who pays or agrees to pay such individual at a fixed rate, based on the time spent in the performance of such services or on the number of operations accomplished, or quantity produced or handled. However:
(a) Where services are rendered by an independent contractor, an individual shall not be an employee under this section unless the individual is a musician or supporting technical person.
(b) Where services are rendered only partly in this state, an individual shall not be an employee under this section unless the contract of employment of the employee has been entered into, or payments thereunder are ordinarily made or to be made, within this state.ORS § 652.310.
Plaintiff responds that the Oregon Court of Appeals has made it clear that the definition of “employee” at ORS § 652.310 does not apply to claims brought under ORS § 652.150. Pl.'s Opp'n 2, ECF No. 37. Instead, Plaintiff argues that the Oregon Court of Appeals decisions in Pope v. Judicial Dep't of State, 79 Or.App. 732, 734 (Or. App. 1986), and State ex rel. Roberts v. Bomareto Enterprises, Inc., 153 Or.App. 183, 187 (Or. App. 1998) (“Roberts”), require that courts apply “common” definitions of “employee” and “employer” for claims brought under ORS § 652.150. Id. In reply, Defendant asserts that Pope and Roberts no longer remain good law in the wake of the Oregon Supreme Court's decision in Taylor v. Werner Enters., Inc., 329 Or. 461, 467 (Or. 1999) (“Taylor”). See Def.'s Reply at 5, ECF No. 38.
Plaintiff's motion for leave to file a surreply (ECF No. 39) is GRANTED. The Court has carefully considered all of the parties' briefing and the entire record in reaching its recommendation.
As explained in more detail below, because the Court concludes that Taylor supplies the appropriate analytical framework, the definition of employee found at ORS § 652.310(2) applies in this case.
In Pope, the plaintiff brought a claim under Oregon's wage statutes for failure to pay her accrued vacation within 48 hours of the termination of her employment. 79 Or.App. at 734. The court began its analysis by noting that “word ‘employer' in ORS 652.150 [was] not defined in that section or in any other specifically applicable statutory section.” Id. at 735. After surveying the history and interplay of Oregon's various wage statutes, the court declined the parties' invitations to look to other statutory definitions to give meaning to “employer.” Id. at 735-36. Specifically, the court considered and rejected applying ORS § 652.310's definition, concluding that the definition of “employer” contained in ORS § 652.310, was “of no direct application in defining ‘employer' in ORS 652.150.” Pope, 79 Or.App. at 736. Ultimately, Pope went on to supply a “common” definition for the word “employer” as used in ORS § 652.150: “one who hires another for wages.” Id. at 736-37 (“In the absence of any other indication of legislative intent, we give the term ‘employer' its common meaning.”).
Over a decade later in Roberts, the Bureau of Labor and Industries brought minimum wage claims on behalf of a group of exotic dancers who “were not paid by [the] defendants, but earned compensation directly from customers in the form of tips.” 153 Or.App. at 186. The defendants argued that the dancers were not “employees” because “ORS chapter 653, which govern[ed] minimum wage claims, contain[ed] no definition of ‘employee[.]'” Id. at 187. Therefore, the defendant asserted,
the definition of ‘employee' found in ORS chapter 652, which governs general employment conditions, must be imported into the minimum wage statutes.Id.
Presumably, the defendants in Roberts advanced such an argument because applying ORS § 652.310 could have potentially precluded a finding that the dancers were employees as they arguably did not “render[] personal services wholly or partly in this state to an employer who pays or agrees to pay such an individual at a fixed rate ....” ORS § 652.310(2) (emphasis added).
The court rejected that argument. Id. Instead, the court looked to related statutes in ORS chapter 653 holding that “by contextual implication, an employee is a person who is ‘suffered or permitted to work.'” Id. (quoting ORS § 653.010).
Thus, the Oregon Court of Appeals-in two decisions defining the related terms of “employer” and “employee”-has twice declined invitations to “import” the statutory definitions contained at ORS § 652.310 into other wage and hour statutory claims.
However, the Oregon Supreme Court reached a different conclusion in Taylor. There, the plaintiff, a long-haul trucker, alleged that the defendant, a trucking company, violated ORS § 652.150 by failing to pay the plaintiff wages upon the termination of his employment and violated ORS § 652.610 by improperly “withholding $400 from his wages as a bond” after he stopped working. Taylor, 329 Or. at 463. The court went on to hold that the definition of “employer” in ORS § 652.310 applied to claims brought under ORS §§ 652.150 and 652.610. Taylor, 329 Or. at 467. This was so, the court reasoned, because:
[t]he statutes on which [the] plaintiff base[d] his claims, ORS 652.150 and ORS 652.610, prohibit, respectively, untimely payment of wages and certain withholdings of wages-subjects that directly relate to the “payment of wages.” Thus, the definition of employer in ORS 652.310(1) also applies to ORS 652.150 and ORS 652.610, and controls our understanding of the scope of the term “employer” and our analysis of [the defendant's] obligations.Id. In other words, because ORS § 652.150 directly relates to the “payment of wages,” the court held that the definition of employer in ORS § 652.310 also applied to ORS § 652.150 even though ORS § 652.150 falls outside list of enumerated statutes listed in ORS § 652.310's opening text. See ORS § 652.310 (explaining that the definitions of employer and employee apply to “ ORS 652.310 to 652.414, unless the context requires otherwise”) (emphasis added).
When interpreting state law, a federal court is bound by the decision of the highest state court. Dimidowich v. Bell & Howell, 803 F.2d 1473, 1482 (9th Cir.1986). Federal courts “will ordinarily accept the decision of an intermediate appellate court as the controlling interpretation of state law,” Tomlin v. Boeing Co., 650 F.2d 1065, 1069 n.7 (9th Cir. 1981), unless it finds “convincing evidence that the state's supreme court likely would not follow” the intermediate appellate court's decision, Ryman v. Sears, Roebuck & Co., 505 F.3d 993, 994 (9th Cir. 2007).
Here, the Oregon Court of Appeals has held that the definition of “employee” found at ORS § 652.310 does not apply to claims under ORS § 652.150. See Roberts, 153 Or.App. at 187 (declining to apply statutory definition of employee found at ORS § 652.310 and holding that an “employee” as used in ORS § 652.150 is a person who is “suffered or permitted to work”); cf. Pope, 79 Or.App. at 734 (declining to apply statutory definition of “employer” found at ORS § 652.310 and holding “employer” as used in ORS § 652.150 is “one who hires another for wages”).
Although the Oregon Supreme Court's holding in Taylor concerned the definition of “employer” and not “employee,” the Court concludes that the Oregon Supreme Court's analytical framework-and its holding that ORS § 652.310's statutory definition applied to the plaintiff's wage claim under ORS § 652.150-is convincing evidence that, if faced with the question of whether ORS § 652.310's statutory definition applies to the definition of “employee” the Oregon Supreme Court would follow its reasoning from Taylor and reject the Court of Appeals analytical approach in Roberts.
Therefore, in light of the Oregon Supreme Court's holding that the definition of “employer” in ORS § 652.310 applies to “any statute relating to the payment of wages,” this Court will similarly apply the definition of “employee” in ORS § 652.310 to “any statute relating to the payment of wages.” Taylor, 329 Or. at 467. As Plaintiff's claims for violating Oregon's wage-and-hour laws are statutes relating to the payment of wages, the definition of “employee” in ORS § 652.310 applies to Plaintiff's claims.
II. Adequacy of the Pleadings
Defendant argues that Plaintiff has failed to adequately plead that he was an employee subject to Oregon's wage-and-hour laws. Def.'s Mot. 2, ECF No. 34. In order to adequately plead as much, Plaintiff was “required to plead that he entered into a contract, or received payments pursuant to that contract, within the state of Oregon.” Findings and Recommendation at 16 (citing ORS § 652.310(2)(b)), ECF No. 29 (“F&R”). In the SAC, Plaintiff alleged the following:
For each year from 2014 to 2020, Boggs performed some portion of his work in Oregon, including trainings and certification classes at Onity's headquarters in Salem, Oregon. Boggs was required to attend these classes. Also, [between] September 4-5, 2019, Boggs worked in Ontario, Oregon. Plaintiff entered into a contract for the services he performed in Oregon, and received payments for services performed in Oregon.SAC ¶ 15, ECF No. 33. Defendant argues that “Plaintiff's ‘[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements' are insufficient.” Def.'s Mot. 3, ECF No. 34 (quoting Ashcroft, 556 U.S. at 678). Plaintiff responds that he has plainly “alleged that he was an employee of [Defendant].” Pl.'s Opp'n 12, ECF No. 37. Given that the Court must accept as true all well-pleaded material facts alleged in the complaint and construe them in the light most favorable to the non-moving party, the Court concludes that Plaintiff has sufficiently plead he was an employee of Defendant.
“[D]etermining whether a complaint states a plausible claim is context specific, requiring the reviewing court to draw on its experience and common sense.” Ashcroft, 556 U.S. at 663-64 (emphasis added; citation omitted). The SAC alleges that Plaintiff worked partially in Oregon for six years including trainings, and specifically alleged that he performed work in Ontario, Oregon between September 4-5, 2019. SAC ¶ 15, ECF No. 33. The SAC further alleges that Plaintiff entered into a contract for the services performed in Oregon during this time period and received payments for services performed in Oregon. Id.
As a result, the SAC sufficiently alleges facts that allow the Court to infer that Plaintiff met the definition of “employee” under ORS § 652.310 for three reasons. Plaintiff identified specific dates during which: (1) Defendant employed him in Oregon; (2) Plaintiff and Defendant entered into a contract for services performed in Oregon; and (3) Plaintiff received payments for the services performed in Oregon. Although Plaintiff could have supplied additional details, as alleged, the SAC goes beyond a “formulaic recitation of the elements of a cause of action” and contains sufficient “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Twombly, 550 U.S. at 555.
Finally, Defendant asserts that because Plaintiff failed to argue that the SAC “alleges facts demonstrating Plaintiff meets the definition [of employee] in ORS § 652.310(2)” in response to their motion to dismiss, their motion to dismiss should be granted because “Plaintiff has effectively conceded that he is not an ‘employee' within the meaning of ORS § 652.310(2).” Def.'s Reply at 3, ECF No. 38. However, notwithstanding the parties' competing arguments on the source of the appropriate definition of “employee,” the SAC has adequately alleged facts that permit the Court to infer that Plaintiff was an “employee” as defined in ORS § 652.310(2) for the reasons stated above.
Accordingly, Plaintiff has adequately plead that he was an employee of Defendant. Defendant's motion to dismiss Count II of the SAC should therefore be denied.
RECOMMENDATION
For the reasons above, Defendant's motion to dismiss (ECF No. 34) should be DENIED. This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Federal Rule of Appellate Procedure 4(a)(1) should not be filed until entry of the district court's judgment or appealable order. The Findings and Recommendation will be referred to a district judge. Objections to this Findings and Recommendation, if any, are due fourteen (14) days from today's date. See Fed.R.Civ.P. 72. Failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991).