JOHN MITCHELL, Plaintiff-Appellant, v. MEDTRONIC, INC., Defendant-Appellee.
No. 15-56453
United States Court of Appeals, Ninth Circuit
March 21, 2017
685 F. App‘x 625
Before: SCHROEDER and MURGUIA, Circuit Judges, and GLEASON,* District Judge.
D.C. No. 2:15-cv-04533-DMG-JC. Argued and Submitted March 7, 2017 Pasadena, California.
Donald Manwell Falk, Mayer Brown LLP, Palo Alto, CA, Ruth Zadikany, Esquire, Attorney, Mayer Brown LLP, Los Angeles, CA, John Peter Zaimes, Esquirе, Mayer Brown LLP, Los Angeles, CA, for Defendant-Appellee
MEMORANDUM **
Plaintiff-Appellant John Mitchell appeals the district court‘s decision to grant Defendant-Appellеe Medtronic‘s motion to dismiss Appellant‘s claims pertaining to the calculation of overtime under the Fair Labor Standards Act (FLSA). A district court‘s order granting a motion to dismiss for failure to state a claim is reviewed de novo. Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1102 (9th Cir. 2003). We have jurisdiction pursuant to
Under the FLSA, overtime is calculated from an employee‘s regular rate of pay. The “regular rate” under the FLSA means the hourly rate actually paid for the normal, non-overtime work week, Walling v. Helmerich & Payne, 323 U.S. 37, 40, 65 S.Ct. 11, 89 L.Ed. 29 (1944), and includes all remunerations paid to the employee, except for those payments exempt under the FLSA. One such exemption is for “extra compensation provided by a premium rate paid for certain hours worked ... in excess of the employee‘s normal working hours.”
Medtronic‘s meal payments to its California employees were fully consistent with the payments mandated by
AFFIRMED.
Stephen YAGMAN, Plaintiff-Appellant, v. Paul Lewis GABBERT, Defendant-Appellee.
No. 15-55904
United States Court of Appeals, Ninth Circuit
March 21, 2017
685 F. App‘x 625
Before: PAEZ, BERZON, and CHRISTEN, Circuit Judges.
D.C. No. 2:14-cv-04021-RGK-PJW. Argued and Submitted March 7, 2017 Pasadеna, California.
Lisa D. Angelo, Esquire, Attorney, Edmund Gerard Farrell, III, Esquire, Gina Elizabeth Och, Esquire, Attorney, Murchison & Cumming, LLP, Los Angeles, CA, for Defendant-Appellee
MEMORANDUM *
Plaintiff-Appellant Stephen Yagman appeals the district court‘s dismissal of his Racketeer Influenced and Corrupt Organizations Act (“RICO“) claim without leave
1. The district cоurt did not err in dismissing Yagman‘s civil RICO claim from his First Amended Complaint. Among other defects, Yagman did not adequately allege a pattern of racketeering activity sufficient plausibly to state a civil RICO claim. See Eclectic Props. E., LLC v. Marcus & Millichap Co., 751 F.3d 990, 997 (9th Cir. 2014).
Yagman alleges in general terms, “[o]n information and belief,” that the RICO enterprise‘s activities have occurred on many оccasions “over the past 10 years,” constituting “at least three separate acts.” He alleges a relationship between Gabbert‘s “wrongful acts” in that “thеy evidence civil RICO predicates,” but does not sufficiently elaborate on these acts or their common characteristics. Nor does Yagman plausibly аllege a threat of continued criminal activity, as Gabbert withdrew from representing Yagman‘s interests in 2013, and the past misrepresentations Yagman alleges are insufficient to establish the requisite pattern. See Steam Press Holdings, Inc. v. Hawaii Teamsters, Allied Workers Union, Local 996, 302 F.3d 998, 1011 (9th Cir. 2002).
Yagman‘s nonspecific RICO allegations thereforе cannot survive a motion to dismiss. See Woods v. U.S. Bank N.A., 831 F.3d 1159, 1162 (9th Cir. 2016); see also Sanford v. MemberWorks, Inc., 625 F.3d 550, 557-58 (9th Cir. 2010). Because Yagman has not plausibly alleged a substantive RICO violation, his conspiracy claim under
Nor did the district court abusе its discretion in denying Yagman further opportunity to amend his RICO claim. The district court permitted Yagman to amend his original complaint. Yagman made only minimal changes, and his First Amended Complaint continued to lack the facts necessary to support a RICO claim. “A district court‘s discretion to deny leave to amend is particularly broad where the plaintiff has previously amended.” Salameh v. Tarsadia Hotel, 726 F.3d 1124, 1133 (9th Cir. 2013) (internal quotation marks and citation omitted). The district court did not abuse its discretion in concluding that further amendment оf the RICO claim would be futile, and thus in declining to grant Yagman further leave to amend it.
2. The district court likewise did not err in concluding that the parties lacked diversity because Yagman was domiciled in California, rather than New York, at the time he filed this lawsuit. See Lew v. Moss, 797 F.2d 747, 750 (9th Cir. 1986) (“[D]omicile for purposes of diversity is determined as of the time the lawsuit is filed.“).1 “[A] pеrson is domiciled in a location where he or she has established a fixed habitation or abode in a particular place, and intends to remain there permanently or indefinitely.” Id. at 749-50 (internal quotation marks, brackets, and citations omitted). Accordingly, “domicile includes a subjective as well as an objective component, although the subjective component may be established by objective factors.” Gaudin v. Remis, 379 F.3d 631, 637 (9th Cir. 2004).
Several factors are relevant to the domicile inquiry, with no single fаctor controlling. See Lew, 797 F.2d at 750-52. These factors include current residence, voting information, location of property, location
“The factual determinations necessary to establish diversity jurisdiction are reviewed for clear error.” Kroske v. U.S. Bank Corp., 432 F.3d 976, 979 (9th Cir. 2006). The district court found that several objective factors weighed in favor of California domicile and did not clearly err in doing so. Yagman does not dispute that he currently residеs exclusively in California and has resided only in California since 2009. Although he has some relatives located in New York, his spouse resides in California and Florida, not New Yоrk. Yagman represents that the federal government requires him to have a bank account, which he maintains in California. Yagman has a California driver‘s license, whiсh he also claims the government requires him to have, as well as a New York driver‘s license, but his New York driver‘s license bears a California address.
Yagman‘s professiоnal activities also tie him to California. Although Yagman was at one point a member of both the New York and California bars, he did not seek reinstatement in New York after his membership was suspended in 1999, but apparently did apply for reinstatement in California after a 1998 suspension. He then practiced in California for many years. After being disbarred, Yagman continued to work as a paralegal for his former law partners. Yagman contends that his work was uncompensated and did not necessarily occur in California, but the former partners for whom he worked are based in California, raising the inference that his professional activities continued to occur in that state through 2014.2
Yagman does have some ties to New York, including voter registration and voting until 2007, jury service until 2007, and alleged ownership of real propеrty in New York. An order by Judge Morrow in 2005 also suggests Yagman could show New York domicile at that time. Order, ECF No. 15, Yagman v. Markovich, 2:05-cv-01745-MMM-PJW (C.D. Cal. June 27, 2005). But even if these facts were sufficient to establish that Yagman previously was domiciled in New York, Gabbert has carried his burden to show that Yagman‘s domicile since has changed to California. See Mondragon v. Capital One Auto Fin., 736 F.3d 880, 885 (9th Cir. 2013). At the time this lawsuit was filed in 2014, Yagman resided only in California, and the weight of the other relevant objective factors showed “an intention to remain there indefinitely,” notwithstanding Yagman‘s assertion to the contrary. See Lew, 797 F.2d at 750.
Accordingly, the district court did not err in concluding Yagman was domiciled in California and thus that the parties lacked diversity. Nor did the district court abuse its discretion in dismissing without рrejudice the remainder of Yagman‘s state-law claims. See Sanford, 625 F.3d at 561.