                                                                            FILED
                            NOT FOR PUBLICATION                                MAR 01 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



KENNY ARCHILA, individually, and on              No. 09-56497
behalf of all other similarly situated
current and former employees of KFC U.S.         D.C. No. 2:09-cv-00107-R-FMO
Properties, Inc.,

              Plaintiff - Appellant,             MEMORANDUM *

  v.

KFC U.S. PROPERTIES, INC., a
Delaware corporation,

              Defendant - Appellee.



                    Appeal from the United States District Court
                       for the Central District of California
                     Manuel L. Real, District Judge, Presiding

                     Argued and Submitted February 14, 2011
                              Pasadena, California

Before: ALARCÓN, RYMER, and BYBEE, Circuit Judges.

       Plaintiff-Appellant Kenny Archila (“Archila”) appeals the district court’s

dismissal of his class allegations and his claims under California’s Private



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Attorneys General Act of 2004 (“PAGA”), C AL. L AB. C ODE §§ 2698–2699.5,

against Defendant-Appellee KFC U.S. Properties, Inc. (“KFC”). We affirm.

      The district court dismissed the class allegations because Archila failed to

file a motion for class certification within 90 days as required by the Central

District’s Local Rule 23-3. Archila’s arguments that the 90-day deadline violates

his due process rights and conflict with the Federal Rules of Civil Procedure have

no merit. Nor does Archila meet the burden of showing that the district court

abused its discretion when it refused to extend the 90-day deadline.

      With regard to the PAGA claims, we hold that the district court properly

exercised jurisdiction over the claims. Although California may be a real party in

interest to a PAGA action, see Arias v. Superior Court, 209 P.3d 923, 933 (Cal.

2009), this does not convert California into an actual party to all PAGA litigation,

see United States ex rel. Eisenstein v. City of N.Y., 129 S. Ct. 2230, 2235 (2009)

(“[W]hen . . . a real party in interest has declined to bring the action or intervene,

there is no basis for deeming it a ‘party’ . . . .”). Archila’s arguments that a federal

court’s assumption of jurisdiction over a PAGA action violates California’s rights

under the Tenth and Eleventh Amendments therefore lack merit.

      The dismissal of the class claims did not automatically deprive the district

court of supplemental jurisdiction over the PAGA claims. See United Steel, Paper


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& Forestry, Rubber, Mfg., Energy, Allied Indus. & Serv. Workers Int’l Union v.

Shell Oil Co., 602 F.3d 1087, 1092 (9th Cir. 2010) (“If a defendant properly

removed a putative class action at the get-go, a district court’s subsequent denial of

Rule 23 class certification does not divest the court of jurisdiction, and it should

not remand the case to state court.”). The district had discretion over whether to

remand the PAGA claims to state court, and we review for abuse of discretion. See

28 U.S.C. § 1367(c)(3) (“The district courts may decline to exercise supplemental

jurisdiction over a claim . . . if . . . the district court has dismissed all claims over

which it has original jurisdiction.”); Carlsbad Tech., Inc. v. HIF Bio, Inc., 129 S.

Ct. 1862, 1866 (2009) (“A district court's decision whether to exercise

[supplemental] jurisdiction after dismissing every claim over which it had original

jurisdiction is purely discretionary.”). Archila has not carried his burden of

showing an abuse of discretion.

       The district court treated the PAGA claims as foreclosed when it granted

KFC’s motion in limine to exclude the cover letter Archila sent to the Labor and

Workforce Development Agency (“LWDA”). Because granting the motion in

limine operated as “a dispositive ruling akin to a dismissal under Fed. R. Civ. P.

12(b)(6),” we review the district court’s ruling de novo, Dubner v. City & Cnty. of




                                             3
S.F., 266 F.3d 959, 968 (9th Cir. 2001), and we may affirm on any ground

supported by the record, see Canyon Cnty. v. Syngenta Seeds, Inc.,

519 F.3d 969, 975 (9th Cir. 2008).

      Before an employee may bring a PAGA suit, he must “give written notice . .

. to the [LWDA] and the employer of the specific provisions of [the California

Labor Code] alleged to have been violated, including the facts and theories to

support the alleged violation.” C AL. L AB. C ODE § 2699.3(a)(1). Regardless of

whether the cover letter to the LWDA is admissible, none of the materials Archila

submitted to KFC or the LWDA contain “facts and theories” to support his

allegations. The demand letter merely lists several California Labor Code

provisions Archila alleges KFC violated and requests that KFC conduct an

investigation. Citing an inapposite case about EEOC complaints, Archila insists

the contents of his letter are adequate because we must construe it “with utmost

liberality.” See B.K.B. v. Maui Police Dep’t, 276 F.3d 1091, 1100 (9th Cir. 2002).

Even if we were to read the cover and demand letters “with utmost liberality,”

because neither letter contains any factual allegations whatsoever, they cannot

constitute adequate notice for purposes of PAGA. Archila’s PAGA claims

therefore cannot proceed.

      AFFIRMED.


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