Russell v. Government Employees Insurance Company et al
| Marisha Russell |
| Government Employees Insurance Company, Geico General Insurance Company, Geico Insurance Agency, Inc. and Does 2-20 |
| 3:2017cv00672 |
| April 3, 2017 |
| US District Court for the Southern District of California |
| San Diego Office |
| San Diego |
| William V. Gallo |
| Janis L. Sammartino |
| Fair Labor Standards Act |
| 28 U.S.C. ยง 1331 |
| Both |
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Filing
28
ORDER Granting Defendant's 23 Motion to Dismiss. The Court grants Defendant's Motion to Dismiss, (ECF No. 23 ), and dismisses without prejudice Plaintiff's Second Amended Complaint. Additionally, the Court denies Defendant's Request for Judicial Notice, (ECF No. 23 -2). Signed by Judge Janis L. Sammartino on 3/8/2018. (mpl)
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Filing
19
ORDER Granting Defendants 8 Motion to Dismiss for Failure to State a Claim. It is ordered that Because the PSP bonus was a nondiscretionary bonus and paid as a percentage of Plaintiff's straight time and overtime wages earned during the pre vious calendar year, Defendant properly excluded the PSP bonus from Plaintiff's regular rate of pay when calculating Plaintiff's overtime pay. And because this threshold issue governs all of Plaintiff's causes of action, Plaintiff 's claims are dismissed. Nonetheless- in light of Plaintiff's newly raised trust- vesting argument- the Court will not yet dismiss Plaintiff's claims with prejudice. Polich v. Burlington N. Inc., 942 F.2d 1467, 1472 (9th Cir. 1 991) ("Dismissal without leave to amend is improper unless it is clear, upon de novo review, that the complaint could not be saved by any amendment." (citing Kelson v. City of Springfield, 767 F.2d 651, 653 (9th Cir. 1985))). Accordin gly, this dismissal is without prejudice and plaintiff is granted leave to file an amended Complaint, if any, on or before fourteen days from the date on which this Order is electronically docketed. Signed by Judge Janis L. Sammartino on 7/11/2017. (dxj)
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