Mary Milligan, individually and on behalf of all others similarly situated v. American Airlines, Inc.

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARY MILLIGAN, individually and on
behalf of all others similarly situated,
Plaintiff - Appellant,
v.
AMERICAN AIRLINES, INC.,
Defendant - Appellee.
No. 08-55276
D.C. No. CV-07-03688-R
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding
Argued and Submitted April 15, 2009
Pasadena, California
Before: CANBY, RAWLINSON, and N.R. SMITH, Circuit Judges.
Mary Milligan appeals (1) the district court order denying leave to amend
her complaint to add California Labor Code Private Attorneys General Act
(“PAGA”) claims alleging § 226(a) violations and (2) the order granting American
FILED
JUN 05 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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Airlines (“American”) summary judgment for Milligan’s failure to present a
genuine dispute of material fact with respect to § 226(e) injury. 1
1. The district court abused its discretion by denying Milligan leave to add
her § 226 PAGA claims. See Brothers Records, Inc. v. Jardine, 318 F.3d 900, 911
(9th Cir. 2003). These claims “share a common core of operative facts” with her
§ 226(e) claims (American’s alleged § 226(a) violations). Williams v. Boeing Co.,
517 F.3d 1120, 1133 (9th Cir. 2008). Therefore, the § 226 PAGA claims relate
back to the original complaint. See id.
Contrary to the district court’s decision, Federal Rule of Civil Procedure
15(c) controls, not Wilson v. People, 76 Cal. Rptr. 906 (Cal. Ct. App. 1969). See id.
at 908 (discussing California procedural rule and holding “the rule of relation back
does not operate to assign the performance of a condition precedent to a date prior
to its actual occurrence”); Hanna v. Plumer, 380 U.S. 460, 471 (1965) (“When a
situation is covered by one of the Federal Rules . . . the [district] court . . . appl[ies]
the Federal Rule” unless the “Advisory Committee, [the Supreme] Court, and
Congress erred in their prima facie judgment that the Rule in question transgresses
neither the terms of the Enabling Act nor constitutional restrictions.”).
1 In Milligan v. Am. Airlines, Inc., 327 F. App’x 694, 695 (9th Cir. 2009), we
deferred deciding these appeal issues. The automatic stay on American’s
bankruptcy no longer bars us from adjudicating the deferred issues.
2

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On remand, the district court must determine whether the PAGA claims are
viable.
2. We review de novo the district court’s order granting a motion for
summary judgment. Universal Health Servs., Inc. v. Thompson, 363 F.3d 1013,
1019 (9th Cir. 2004). American’s alleged § 226(a) violations did not injure
Milligan. See Cal. Lab. Code § 226(e). “The injury requirement . . . cannot be
satisfied simply because one of the nine itemized requirements in [§ 226(a)] is
missing from a wage statement.” Price v. Starbucks Corp., 122 Cal. Rptr. 3d 174,
179 (Cal. Ct. App. 2011).
a. Performing simple math to determine § 226(a)-required information from
figures on the wage statement does not constitute injury. Id. Thus, even if Milligan
had to divide her total pay for the period by her hours worked during the period to
compute her hourly rate, she did not suffer a § 226(e) injury.
b. Milligan argues that having to “dig out” § 226(a)-required information
omitted from her wage statements constitutes injury. However, assuming that
merely having to look up an address constitutes injury, Milligan did not present
evidence that she had to consult extrinsic sources to determine American’s address
during the time American issued the challenged wage statements. Moreover, she
knew the address from memory at her deposition.
3

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REVERSED and REMANDED in part, AFFIRMED in part. The parties
shall bear their own costs.
4

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