FILED
NOT FOR PUBLICATION DEC 10 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
CLAUDIA MORENO, No. 09-17503
Plaintiff, D.C. No. 3:05-cv-04432-CRB
and
MEMORANDUM *
MICHELE MEDRANO, individually, and
on behalf of all persons similarly situated,
Plaintiff - Appellant,
v.
AUTOZONE, INC., a Nevada corporation,
Defendant - Appellee.
CLAUDIA MORENO, individually, and No. 09-17629
on behalf of all persons similarly situated,
D.C. No. 3:05-cv-04432-CRB
Plaintiff,
and
MICHELE MEDRANO, individually, and
on behalf of all persons similarly situated,
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Plaintiff - Appellee,
v.
AUTOZONE, INC., a Nevada corporation,
Defendant - Appellant.
Appeal from the United States District Court
for the Northern District of California
Charles R. Breyer, District Judge, Presiding
Submitted December 8, 2010 **
San Francisco, California
Before: HUG, D.W. NELSON and McKEOWN, Circuit Judges.
Michele Medrano, a former employee of AutoZone, Inc., is the sole
remaining plaintiff in this suit concerning AutoZone’s wage and hour practices.
As part of an order dismissing Medrano’s remaining claims, the district court
granted summary judgment to AutoZone on Medrano’s individual claim that
AutoZone did not timely issue her final paycheck. The district court then vacated
its prior order certifying a class of former AutoZone employees who had received
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
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untimely final paychecks and dismissed the claim without allowing the substitution
of a new named plaintiff.1
Medrano’s final paycheck claim implicates California Labor Code § 202(a),
which provides that when an employee quits without notice, “his or her wages shall
become due and payable not later than 72 hours thereafter.” Payment of these
wages is to be made “at the office or agency of the employer in the county where
the employee has been performing labor.” Id. § 208. Penalty wages accrue “[i]f an
employer willfully fails to pay” the final paycheck in the time period proscribed,
except when the employee “secretes or absents himself or herself to avoid
payment” or “refuses to receive the payment when fully tendered.” Id. § 203(a).
Medrano argues on appeal that she is entitled to penalty wages because,
although she quit her job with AutoZone without notice on April 15, 2005,
AutoZone did not issue her final paycheck until April 29. We do not doubt that
AutoZone would be liable for penalty wages under § 203(a) if Medrano had
1
We previously ordered Medrano to file a letter brief addressing the district
court’s subject matter jurisdiction over this case and prima facie proof of
AutoZone’s principal place of business. See 28 U.S.C. § 1653 (“Defective
allegations of jurisdiction may be amended, upon terms, in the trial or appellate
courts.”); Blue Ridge Ins. Co. v. Stanewich, 142 F.3d 1145, 1147-48 (9th Cir.
1998) (discussing a similar order). In light of the evidence Medrano submitted, we
are satisfied that jurisdiction was proper under the Class Action Fairness Act, 28
U.S.C. § 1332(d).
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returned to the store 72 hours after she quit only to discover that her final paycheck
was not yet ready. Medrano concedes, however, that California law imposed a
duty on her to return to the AutoZone store where she worked in order to collect
that paycheck. She also concedes that she did not do so until after April 29, and
that when she eventually did return to the store, she received her final paycheck
immediately upon demand. There was thus no period of time after Medrano
fulfilled her self-recognized duty in which AutoZone “willfully fail[ed] to pay”
Medrano’s wages. The district court accordingly did not err in granting summary
judgment to AutoZone on Medrano’s individual claim.
Because Medrano never had a cognizable late paycheck claim against
AutoZone, “she cannot represent others who may have such a claim, and her bid to
serve as a class representative must fail.” Lierboe v. State Farm Mut. Ins. Co., 350
F.3d 1018, 1022 (9th Cir. 2003). As a result, “certification of the class with
[Medrano] as its representative must be vacated,” and substitution of a new named
plaintiff is not required. See id. at 1023. The district court did not err in
dismissing the final paycheck claim.
Because we affirm the district court’s decision to vacate its prior class
certification, we do not consider the alternate grounds for vacatur presented by
4
AutoZone’s cross-appeal, which is now moot. We also deny as moot Medrano’s
motion for judicial notice.
AFFIRMED.
5