Linz v. Core Values Roadside Service, LLC

• Court: District Court, E.D. Washington
• Decided: December 22, 2022
• Docket: 2:20-cv-00107
• Status: Unknown

Opinion

1 2 3 4 5 6 U.S. F DIL ISE TD R I IN C TT H CE O URT EASTERN DISTRICT OF WASHINGTON 7 UNITED STATES DISTRICT COURT Dec 22, 2022 EASTERN DISTRICT OF WASHINGTON 8

SEAN F. MCAVOY, CLERK 9 JEREMIAH LINZ and AARON No. 2:20-CV-00107-ACE 10 KAMINSKY, individually and on

behalf of all others similarly situated, 11 ORDER DENYING PLAINTIFFS’

MOTION FOR SUMMARY 12 Plaintiffs, JUDGMENT AND GRANTING 13 DEFENDANTS’ CROSS-MOTION v. 14 FOR SUMMARY JUDGMENT

15 CORE VALUES ROADSIDE

SERVICE, LLC, and MARK 16 ECF Nos. 93, 106, 133 HYNDMAN, 17 Defendants. 18 19

20 BEFORE THE COURT are the parties’ cross motions for summary 21 judgment. ECF Nos. 93, 106. Plaintiffs are represented by Matthew S. Okiishi, 22 Stephen E. Imm, and Matthew Z. Crotty; Defendants are represented by Jeremy S. 23 Hyndman. The case was reassigned to the undersigned magistrate judge on 24 September 21, 2022. ECF No. 115. 25 BACKGROUND 26 Plaintiffs filed a complaint on July 2, 2019, asserting federal question 27 jurisdiction pursuant to 28 U.S.C. § 1331 and supplemental jurisdiction over 28 ORDER GRANTING DEFENDANTS’ CROSS-MOTION FOR SUMMARY 1 pendent state law claims pursuant to 28 U.S.C. § 1367. ECF No. 1. Plaintiffs filed 2 an Amended Complaint on July 29, 2020, asserting federal jurisdiction on the same 3 grounds. ECF No. 67. Plaintiffs’ Amended Complaint raises causes of action for 4 failure to pay statutory minimum wages in violation of the Fair Labor Standard Act 5 (“FLSA”), 28 U.S.C. § 206; failure to pay overtime wages in violation of FLSA, 6 28 U.S.C. § 207; unjust enrichment; and failure to pay minimum and overtime 7 wages in violation of Ohio and Pennsylvania state law. ECF No. 67 at 16–20. The 8 parties have filed cross-motions for summary judgment on the issue of liability for 9 violations of FLSA. ECF Nos. 93, 106. 10 FACTS1 11 Defendant Core Values Roadside Service, LLC (hereinafter “Core Values”) 12 is a Spokane, Washington roadside assistance company that offers such services as 13 tire changes, fuel delivery, jump starts and lockout services. Core Values, 14 15 1 Plaintiffs filed a “Statement of Material Facts Not in Dispute” pursuant to this Court’s 16 local rules. ECF No. 94; see LCivR 56(c)(1)(A) (“A party filing a motion for summary 17 judgment must separately file a “Statement of Material Facts Not in Dispute” which 18 shall specify the undisputed material facts relied upon to support the motion. . . . As to 19 each fact, the statement shall cite to the specific page or paragraph of the record where 20 the fact is found.”). Defendants did not file a “Statement of Material Facts Not in 21 Dispute” with respect to their cross-motion for summary judgment and additionally 22 failed to file a “Statement of Disputed Material Facts” as required by LCivR 56(c)(1)(B) 23 (“A party filing an opposition to a motion for summary judgment must separately file a 24 “Statement of Disputed Material Facts” which shall specify the disputed material facts 25 precluding summary judgment. . . . As to each disputed fact, the statement shall cite to 26 the specific page or paragraph of the record where the disputed fact is found. . . . The 27 opposing party shall also briefly describe any evidentiary objection to the moving 28 party’s asserted fact.”). ORDER GRANTING DEFENDANTS’ CROSS-MOTION FOR SUMMARY 1 operating in several states, acts as an intermediary between insurance providers 2 that offer roadside assistance coverage and businesses that provide roadside 3 assistance services. Defendant Mark Hyndman is the “managing member” of Core 4 Values. 5 Named Plaintiff Jeremiah Linz worked as a roadside assistance technician in 6 Ohio and Pennsylvania from 2017 to 2019. Named Plaintiff Aaron Kaminsky 7 worked as a roadside assistance technician in Pennsylvania from September 2018 8 to April 2019. 9 Prior to providing services for Core Values, Plaintiffs signed Independent 10 Service Provider Agreement (hereinafter “Agreements”). See ECF No. 93-1, Ex. 11 D.2 The Agreements provide that the individual acknowledges he/she is an 12 independent contractor and not an employee, agent, partner or representative of 13 Core Values. Id. ¶ 14. The terms of the Agreement indicate that the Individual 14 Service Provider (hereinafter “ISP”) shall be available to accept Core Values 15 dispatches during its (the ISP’s) hours of operation and shall inform Core Values 16 of any changes in its hours of operation; drivers must be uniformed and maintain a 17 clean and neat appearance; the trucks must display the ISP’s company name; the 18 ISP may provide additional services to motorists not offered by Core Values, 19 charging the motorist directly; Core Values had the right to amend the rate 20 schedule at any time with the new rate automatically becoming a part of the 21 agreement unless the ISP provided written notice that they were electing to 22 terminate the agreement; the ISP was free to contract with other motoring plans to 23 provide services; and the agreement could be terminated at will and without cause. 24 Id. ¶¶ 1, 2, 3, 7, 13. Significantly, the agreement contemplated that an ISP could 25 26 2 Consistent with the theme of unhelpful exhibits that pervades the briefing of the 27 parties, this exhibit is alternately nearly unreadable because it is blurry or rendered in 28 what appears to be the equivalent of 6-point type. ORDER GRANTING DEFENDANTS’ CROSS-MOTION FOR SUMMARY 1 retain its own employees or contractors, subject to drug screening and behavior 2 metrics. Id. ¶ 22. 3 Plaintiffs allege Core Values required them to be “on-call” twenty-four 4 hours per day, seven days per week; keep a dispatch application on their cell phone 5 running at all times; wear a uniform supplied by Core Values; and maintain Core 6 Values’ logo/livery on their vehicles. ECF No. 94 ¶ 5–6 (citing exhibits in support 7 of ECF No. 93-2). Plaintiffs also assert they were not permitted to hire their own 8 employees and could not provide services to motorists that were not offered by 9 Core Values. ECF No. 93-2 at 2 ¶ 13. Plaintiffs further allege Core Values 10 threatened to deduct pay ($8.00) if Plaintiffs refused a dispatch or otherwise failed 11 to respond. ECF No. 94 ¶ 7 (citing ECF No. 93-1, Ex. A). 12 Defendants, for their part, assert that, contrary to Plaintiffs allegations, 13 Plaintiffs could provide additional services to stranded motorists that were not 14 offered by Core Values, billing the motorists directly; Plaintiffs established their 15 own business hours and were not required to be “on call” at all times; Plaintiffs 16 could receive compensation for services completed by others;3 and, while Plaintiffs 17 were required to wear a uniform and have signage on their vehicles, it did not need 18 to be Core Values’ uniform or signage. ECF No. 106 at 2–3 (citing ECF No. 105 19 ¶¶ 4, 11, 15). While Defendants’ decision to counter a self-serving declaration 20 with another of their own does not assist them, the Agreements themselves do. See 21 ECF No. 93-1, Ex. D at 132–35. 22 Plaintiffs aver they regularly worked in excess of forty hours a week, ECF 23 No. 94 ¶ 8 (citing ECF No. 93-2), and that Core Values maintained records of 24 25 3 Defendants note that Named Plaintiff Jeremiah Linz received compensation for work 26 performed by his brother, Daniel Braun, in addition to compensation for his own work. 27 ECF No. 106 at 3 (citing ECF No. 105 ¶ 8). Plaintiffs do not dispute that Mr. Braun 28 billed under Plaintiff Linz’s name. ECF No. 108 at 6. ORDER GRANTING DEFENDANTS’ CROSS-MOTION FOR SUMMARY 1 Plaintiffs’ completed jobs through rate schedules, executed Agreements, 2 onboarding information, and payroll. Core Values paid a flat fee for the work 3 performed by Plaintiffs. ECF No. 70 ¶ 22. 4 LEGAL STANDARD 5 “Federal Rule of Civil Procedure 56, which governs motions for summary 6 judgment, is ‘arguably ambiguous’ as to the scope of the record that the district 7 court must review to determine whether summary judgment is appropriate.” Fair 8 Hous. Council of Riverside Cnty., Inc. v. Riverside Two, 249 F.3d 1132, 1135 (9th 9 Cir. 2001) (quoting Carmen v. S.F. Unified Sch. Dist., 237 F.3d 1026, 1029 (9th 10 Cir. 2001)). However, Ninth Circuit caselaw has established that when parties file 11 cross-motions for summary judgment, a court must “review the evidence properly 12 submitted in support of [the] motion[s] to determine whether it present[s] a 13 disputed issue of material fact . . . .” Id. In so doing, that court must “evaluate 14 each motion separately, giving the nonmoving party in each instance the benefit of 15 all reasonable inferences.” ACLU of Nev. v. City of Las Vegas, 333 F.3d 1092, 16 1097 (9th Cir. 2003). 17 Federal Rule of Civil Procedure 56(a) states that a party is entitled to 18 summary judgment in its favor if “the movant shows that there is no genuine issue 19 as to any material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A 20 fact is “material” if it might affect the outcome of the suit under the governing law. 21 See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–249 (1986). A dispute is 22 “genuine” as to a material fact if there is sufficient evidence for a reasonable jury 23 to return a verdict for the nonmoving party. Id. at 248. 24 Once the moving party has carried the burden under Rule 56, the party 25 opposing the motion must do more than simply show there is “some metaphysical 26 doubt” as to the material facts. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio 27 Corp., 475 U.S. 574, 586 (1986). The party opposing the motion must present 28 ORDER GRANTING DEFENDANTS’ CROSS-MOTION FOR SUMMARY 1 facts in evidentiary form and cannot rest merely on the pleadings. Anderson, 477 2 U.S. at 248. Genuine issues are not raised by mere conclusory or speculative 3 allegations. Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888 (1990). 4 The Supreme Court has ruled that Federal Rule of Civil Procedure 56(c) 5 requires entry of summary judgment “against a party who fails to make a showing 6 sufficient to establish the existence of an element essential to that party’s case, and 7 on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 8 322. “A complete failure of proof concerning an essential element of the 9 nonmoving party’s case necessarily renders all other facts immaterial.” Id. at 323. 10 Therefore, the question on summary judgment is “whether the evidence is so one- 11 sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at 251– 12 252. Where there is no evidence on which a jury could reasonably find for the 13 nonmoving party, summary judgment is appropriate. Id. at 252. 14 DISCUSSION 15 I. Fair Labor Standards Act 16 Plaintiffs bring causes of action under the Fair Labor Standards Act, 28 17 U.S.C. §§ 206–207. Both parties agree that whether FLSA applies hinges on 18 whether Plaintiffs are considered “employees” under FLSA, which is determined 19 by a four-factor “economic reality” test. ECF No. 93 at 4–5; ECF No. 106 at 3–4.4 20 21 22 4 Plaintiffs have also urged this Court to consider “non-regulatory” factors in 23 determining whether they were employees under FLSA. ECF No. 93 at 7. The Court 24 would have preferred that Defendants had responded to this argument in their 25 Response. However, Defendants’ puzzling failure to respond is ultimately irrelevant: 26 the Ninth Circuit has held that those factors apply “only to circumstances in which a 27 company has contracted for workers who are directly employed by an intermediary 28 company.” Chao v. A-One Med. Servs., Inc., 346 F.3d 908, 917 (9th Cir. 2003). ORDER GRANTING DEFENDANTS’ CROSS-MOTION FOR SUMMARY 1 Those four factors are “whether the alleged employer (1) had the power to 2 hire and fire the employees, (2) supervised and controlled employee work 3 schedules or conditions of employment, (3) determined the rate and method of 4 payment, and (4) maintained employment records.” Bonnette v. Cal. Health & 5 Welfare Agency, 704 F.2d 1465, 1470 (9th Cir. 1983) (quoting Bonnette v. Cal. 6 Health & Welfare Agency, 525 F. Supp. 128 (N.D. Cal. 1981). However, these 7 factors “are not etched in stone and will not be blindly applied.” Id. Rather, the 8 issue of employment must ultimately be determined by “the circumstances of the 9 whole activity.” Rutherford Food Corp. v. McComb, 331 U.S. 722, 730 (1947). 10 As the Ninth Circuit has previously held, “[t]he touchstone is ‘economic reality.’” 11 Bonette, 704 F.2d at 1469 (quoting Goldberg v. Whitaker House Coop., Inc., 366 12 U.S. 28, 33 (1961). This is because the term “employer” must be given a broad 13 meaning “in order to effectuate the FLSA’s broad remedial purposes.” Id. 14 A. Whether Defendants Had the Power to Hire and Fire Plaintiffs 15 Plaintiffs argue that Defendants had the power to hire and fire them because 16 the Agreements could “be terminated at will and without cause.” ECF No. 93 at 6. 17 For their part, Defendants contend that they could “terminate relationships with 18 ISPs,5 but not hire or fire their works [sic].” ECF No. 106 at 4. “For example, 19 [Defendants] could not terminate [Plaintiff] Linz’s office manager, Elizabeth 20 Mahan.” Id. 21 A plain reading of the Agreements results in only one legal conclusion: 22 either party could terminate these Agreements. The language in the clause makes 23 no mention as to who may terminate the Agreement, and, in fact, the Agreements 24 explicitly state elsewhere that Plaintiffs may “terminate [the] Agreement.” E.g., 25 26 5 Defendants use the term “Independent Service Provider” (“ISP”) throughout their 27 briefings. It is unclear whether Defendants are referring only to Plaintiffs or also to all 28 other ISPs similarly situated to Plaintiffs who are not privy to this lawsuit. ORDER GRANTING DEFENDANTS’ CROSS-MOTION FOR SUMMARY 1 ECF No. 93-1 at 132 ¶3. The four corners of Plaintiff Linz’s agreement provide no 2 support for the proposition that Defendants could terminate Plaintiff Linz’s office 3 manager, rather they support the conclusion that, but for the drug testing and 4 behavior metrics discussed above, Defendants had no direct authority over 5 “employee(s) or contractors(s).” ECF No. 93-1, Ex. D at 135 ¶ 22; see In re 6 Century Cleaning Servs., Inc., 195 F.3d 1053, 1062 (9th Cir. 1999) (Thomas, J., 7 dissenting) (“expressio unius est exclusio alterius (the expression of one thing is 8 the exclusion of the others)”), abrogated on other grounds by Lamie v. U.S. Tr., 9 540 U.S. 526 (2004). Typically, employees are not permitted to hire support staff 10 to work for their benefit without permission from their employer. Plaintiffs’ 11 submissions make their opponents’ case for summary judgment. Plaintiffs provide 12 no reason for the Court to look outside the four corners of these Agreements,6 and 13 their factually unsupported arguments do not create a contested issue of material 14 fact. 15 Plaintiffs admit that Daniel Braun on one occasion billed $11 per run under 16 Plaintiff Linz’s name, when Plaintiff Linz billed $13 at essentially the same time of 17 day for the same type of work, albeit in different states. See ECF No. 108 at 6. 18 This supports a myriad of factual findings, including that Plaintiff Linz was able to 19 use Braun as a subcontractor. See id. It also could support a suspicion that the 20 21 6 The amendments to the Agreement provide no support either. By way of example, 22 Plaintiff Alvandipour’s Declaration asserts the requirement of 24-hours on call status 23 combined with a $8 no response fee. See ECF No. 93-2 at 1–2 ¶¶ 6–8. However, 24 Attachment A to that declaration shows that control over their business hours, and 25 thus any fees, ultimately lies with the ISPs. ECF No. 93-2 at 3 (Defendants’ Memo to 26 Subcontractors dated 1-18-2016) (“We will be relying on your business during the times 27 you have provided . . . .”) (emphasis added). Plaintiffs’ assertions in declarations, 28 without any factual support, do not further their argument. ORDER GRANTING DEFENDANTS’ CROSS-MOTION FOR SUMMARY 1 difference in the rates Plaintiffs claim were non-negotiable was addressed by an 2 exchange of $2 per run, between some combinations of the parties, outside the 3 confines of regular billing. See id. However, the clearly reciprocal ability to 4 cancel these business relationships belies Plaintiffs’ claims. Plaintiffs have not 5 provided competent evidence to question the plain reading of the Agreements. 6 Defendants are entitled to summary judgement as to this factor. 7 B. Whether Defendants Supervised and Controlled Plaintiffs’ Work 8 Schedules or Conditions of Employment 9 Plaintiffs argue that Defendants controlled their work schedules because 10 Defendants required them to keep a mobile dispatch application running on their 11 phones at all times, and failure to respond to a call—even after close of a 12 Plaintiff’s business hours—would result in an $8 penalty. ECF No. 93 at 6–7. 13 While Defendants, again without any explanation, do not respond and thus convert 14 this into an uncontested fact for the purposes of this motion, to the extent that they 15 are not belied by Plaintiffs’ own exhibits (which, as indicated above, they are), this 16 does not alter the Court’s conclusion. Plaintiffs’ citation to authority is clearly 17 distinguishable, 7 and the idea that there might be a penalty for a party engaging in 18 19 7 Plaintiffs’ argument here seems to rely on the proposition that other courts have 20 found an employment relationship where so-called independent contractors were 21 penalized by the defendant. See, e.g., Thompson v. Linda & A., Inc., 779 F. Supp. 2d 22 139, 148 (D.D.C. 2011) (finding that a club’s ability to fine dancers for violating club 23 rules was indicative of the club's role as employer even when violations did not always 24 result in fines and some fines were never collected). However, in those cases, the 25 penalization of plaintiffs by defendants was only one factor in the court’s analysis. See, 26 e.g., id. (club’s ability to enforce rules was only one of five factors considered); Hart v. 27 Rick's Cabaret Int'l, Inc., 967 F. Supp. 2d 901, 921–22 (S.D.N.Y. 2013) (applying same 28 five factors as Thompson); Clincy v. Galardi S. Enters., Inc., 808 F. Supp. 2d 1326, ORDER GRANTING DEFENDANTS’ CROSS-MOTION FOR SUMMARY 1 an action that frustrates the purpose of the contract is unremarkable, as Defendants 2 were in fact subcontractors themselves. See ECF No. 93-2 at 3 (Defendants’ 3 Memo to Subcontractors dated 1-18-16) (“It is our goal to come up with a viable 4 system that makes it clear what our position is while we conduct our business on 5 behalf of our clients.” (emphasis added)). 6 Plaintiffs argue that Defendants controlled their conditions of employment 7 because Defendants required Plaintiffs to “wear Defendants’ approved uniform and 8 display Defendants’ logo/livery on their vehicle[s].”ECF No. 93 at 7. Defendants 9 demonstrate that while Plaintiffs were required to wear a uniform and display some 10 signage, the particulars of each were up to the individual Plaintiff pursuant to the 11 Agreements. ECF No. 105 ¶ 15.8 12 Plaintiffs’ claim that they lacked control over their schedule is again belied 13 by the unrebutted evidence in the record evidence. Defendants demonstrate that, 14 15 16 1344–45 (N.D. Ga. 2011) (defendant’s ability to enforce rules imposed upon plaintiff 17 dancers was only one of six factors considered). 18 8 Multiple Plaintiffs’ declarations also stated that they were required to purchase and 19 wear Defendants’ uniforms and display Defendants’ signage/livery. See, e.g., ECF No. 20 93-2 at 2 ¶¶ 9–10. However, Plaintiffs made no argument in their Reply to dispute 21 Defendants’ contention that Plaintiffs were allowed to choose their own uniforms and 22 signage. See ECF No. 105 ¶ 15. Nor could they, the Agreements clearly state that 23 “[d]rivers must be uniformed” and “[t]rucks must . . . display[] your company name. 24 ECF No. 93-1, Ex. D at 132 ¶ 2 (emphasis added). The plain reading of this clause 25 indicates that Plaintiffs were required to wear a uniform—though it is not specified 26 whether the uniform had to be purchased from or approved by Defendants—and that 27 Plaintiffs’ trucks were required to display the individual Plaintiff’s company name—not 28 Defendants’. ORDER GRANTING DEFENDANTS’ CROSS-MOTION FOR SUMMARY 1 while they did require an ISP to keep them informed of their hours of operation,9 2 they did not control Plaintiffs’ work schedules because Plaintiffs were able to set 3 their own schedules,10 as well as the geographic area in which they offered 4 services. ECF No. 106 at 4. Defendants also demonstrate that they did not control 5 Plaintiffs’ conditions of employment because Plaintiffs could expand their scope of 6 services: they could offer different services from other Plaintiffs based on their 7 individual preferences. ECF No. 105 ¶ 11. Defendants argue that Plaintiff Linz 8 declined to provide tire changes (a service other Plaintiffs offered), but did offer 9 tire patches (a service not offered by other Plaintiffs). Plaintiffs make a truly 10 baffling argument to contest this.11 Id. In the end, as with the discussion of the 11 9 See ECF No. 93-1, Exhibit D at 132 ¶ 1 (“ISP . . . shall inform CVRS of any change in 12 its hours of operation”). 13 10 One email is particularly damaging to Plaintiffs’ case. In that email, dated January 14 5, 2019, Plaintiff Linz not only sets his schedule for the week, but informs Defendants 15 that the schedule he has submitted is “subject to change at any time.” ECF No. 105-1 16 at 44. 17 11 Plaintiffs argue that this assertion is somehow sufficiently rebutted by a previous 18 declaration wherein Plaintiff Linz stated he was not allowed to provide services other 19 than those offered by Defendants. ECF No. 108 at 6 n.2. Plaintiffs fail to explain how 20 Plaintiff Linz’s bare, unsupported, and self-serving declaration rebuts anything. 21 Plaintiff Linz’s statement (as well as several other Plaintiffs’ similarly deficient 22 statements, see, e.g., ECF No. 93-2 at 2 ¶ 13) do nothing to rebut the Agreements signed 23 by the parties, which state that “ISP agrees that it shall be solely responsible for 24 collecting any fees from Members that are not covered by [Defendants] and that 25 [Defendants] shall not have any obligation to pay for such non-covered Services . . . .” 26 ECF No. 93-1, Ex. D at 132 ¶ 3. This language indicates that Plaintiffs were able to 27 perform services beyond those offered by Defendants, but with the caveat that 28 Defendants would not be liable for the collection of payment for such services. ORDER GRANTING DEFENDANTS’ CROSS-MOTION FOR SUMMARY 1 prior factor, there is an Agreement, signed by the parties, which has not been 2 rebutted by Plaintiffs. 3 Plaintiffs argue that Plaintiff Linz only changed his schedule “twenty-one 4 [times] over the course of three years” and that this does not reflect that he did so 5 “frequently.” ECF No. 108 at 3. However, the question is not how frequently 6 Plaintiff Linz changed his schedule, but rather whether Defendants supervised and 7 controlled Plaintiff Linz’s schedule. Thus, the frequency at which Plaintiff Linz 8 changed his schedule has little bearing on the calculus here: the fact that he 9 changed his schedule at all is evidence that Defendants did not control it. 10 In the alternative, Plaintiffs argue that Defendants have only submitted 11 evidence regarding Plaintiff Linz’s schedule while ignoring the rest of the 12 collective Plaintiffs’ schedules, and that the Court should not allow such narrow 13 evidence to “sandbag Plaintiffs’ counsel.” ECF No. 108 at 4 n.1. However, if 14 Plaintiffs wished for this Court to consider other collective Plaintiffs’ schedule 15 adjustments—or lack thereof—they should have attached them to either their 16 Motion or Reply.12 17 Accordingly, the Court finds that Defendants did not control Plaintiffs’ 18 schedules for FLSA purposes. Furthermore, Plaintiffs’ failure to dispute the 19 allegation that they could select their own signage and uniforms in their reply 20 admits the same. The Court therefore finds that there is no contested issue of 21 material fact as to whether Defendants controlled the Plaintiffs’ conditions of 22 employment. Defendants are entitled to summary judgement as to this factor. 23 24 12 See Carmen, 237 F.3d 1026, 1029 (9th Cir. 2001) (“even if an affidavit is on file, a 25 district court need not consider it in opposition to summary judgment unless it is 26 brought to the district court's attention in the opposition to summary judgment”); see 27 also, Riverside, 249 F.3d at 1137 (“a simultaneous cross-motion is another means to 28 bring to the district court's attention a controversy over the facts”). ORDER GRANTING DEFENDANTS’ CROSS-MOTION FOR SUMMARY 1 C. Whether Defendants Determined the Rate and Method of Pay 2 Plaintiffs argue that Defendants determined the rate of pay because “[t]he 3 Agreements allow [Plaintiffs] to only receive rates set by [Defendants]” and that 4 “failure to accept the new rates would result in termination of the Agreements.” 5 ECF No. 93 at 6. Defendants counter that other ISPs negotiated different rates, 6 and that this indicates that Plaintiffs were free to do so as well. ECF No. 105 ¶ 9; 7 ECF No.105-7, Exhibit G (two invoices showing billing by ISP Cd Logistics LLC 8 and ISP Greg Simpson billing at $15 and $14 respectively). Defendants further 9 demonstrate, again with actual invoices, that Plaintiffs negotiated their rates of pay 10 by seeking a “mileage reimbursement” for certain undesirable runs even though 11 such reimbursement was “not based on any specific distance.” Id. ¶ 10; see also 12 ECF No. 105-8, Exhibit H; ECF No. 105-9, Exhibit I. 13 Plaintiffs provided no response to Defendants’ contention regarding mileage 14 reimbursement and instead asserted that whether “two non-Collective members 15 were able to negotiate higher rates of pay . . . is simply irrelevant to the issue at 16 hand.” ECF No. 108 at 5–6. Plaintiffs make this assertion because “based off of 17 common knowledge, different employees in companies throughout America are 18 paid different rates depending on a myriad of factors.” Id. Plaintiffs’ assertion 19 thus rests on the notion that Plaintiffs are employees,—the very issue that the 20 Court’s analysis here seeks to resolve. The proposition that this Court should not 21 look at other ISPs in making its determination as to whether Plaintiffs were 22 employees thus suffers from the same notion. 23 Absent any evidence that these other ISPs were not similarly situated to 24 Plaintiffs, the nature of the relationships between the other ISPs and Defendants is 25 crucial in determining the economic reality of the relationships between Plaintiffs 26 and Defendants. Thus, the fact that other ISPs were able to negotiate different 27 rates indicates that Defendants did not determine the rate of Plaintiffs’ pay for 28 ORDER GRANTING DEFENDANTS’ CROSS-MOTION FOR SUMMARY 1 FLSA purposes. This conclusion is only strengthened by Plaintiffs’ failure to 2 dispute Defendants’ allegations regarding mileage reimbursement. 3 Here as well, the Court finds that the ISPs rates of pay were in fact 4 negotiated by ISPs. Defendants are entitled to summary judgement as to this 5 factor. 6 D. Whether Defendants Maintained Employment Records 7 Plaintiffs argue that Defendants maintained employment records because 8 they “maintain[ed] records relating to the Collective’s completed jobs through their 9 rate schedules, executed Agreements, onboarding information, and payroll.” ECF 10 No. 93 at 6. Defendants dispute this allegation, arguing that they “did not maintain 11 conventional employment records.” ECF No. 106 at 4. Specifically, Defendants 12 contend that they did not maintain records for jobs performed by Plaintiffs and that 13 such records were maintained by a third-party vendor. Id. 14 Plaintiffs rest their argument on the proposition that the Western District of 15 Washington “considers any records relating to employee performance to be 16 employment records.” ECF No. 93 at 6 (citing Tumulty v. FedEx Ground Package 17 Sys., Inc., 2005 WL 8181225 at *4 (W.D. Wash. 2005). Putting aside that the 18 Western District’s ruling is not binding on this Court, Tumulty is nevertheless 19 inapplicable: in that case, the defendant had “maintained customer 20 complaint/satisfaction records for each Driver.” 2005 WL 8181225 at *4. This 21 differs sharply from the present case where Plaintiffs have not identified any 22 records relating to employee performance. 23 Plaintiffs’ assertion that Defendants maintained rate schedules, executed 24 Agreements, onboarding information, and payroll is likewise unpersuasive. The 25 rate schedules and executed Agreements do not establish an employer-employee 26 relationship: such records are kept as a matter of course in both employment and 27 independent contracting relationships. As for onboarding information, the Court 28 ORDER GRANTING DEFENDANTS’ CROSS-MOTION FOR SUMMARY 1 makes no finding. If Defendants had maintained onboarding information such as 2 human resource materials or training manuals, then these materials would have 3 been given to Plaintiffs. Since Plaintiffs have failed to produce any such evidence 4 in their Motion or Reply, the Court assumes it has not been submitted and declines 5 to investigate further. See Greenwood v. F.A.A., 28 F.3d 971, 977 (9th Cir. 1994) 6 ([a]s the Seventh Circuit in Dunkel stated aptly: “[j]udges are not like pigs, hunting 7 for truffles buried in briefs” (quoting United States v. Dunkel, 927 F.2d 955, 956 8 (7th Cir. 1991). As to payroll, Plaintiffs have submitted no evidence that 9 Defendants kept such records and “a bare assertion does not preserve a claim, 10 particularly when, as here, a host of other issues are presented for review.” See id. 11 Accordingly, the Court finds that Defendants did not maintain employment records 12 as contemplated by the FLSA. Defendants are entitled to summary judgement as 13 to this fourth and final factor. 14 E. Plaintiffs Were Not Employees Under FLSA 15 Based on the foregoing, the Court finds that applying the four-factor 16 economic reality test, as set forth in Bonnette, can lead to only one conclusion: 17 Plaintiffs were not employees under FLSA. Although the Court’s analysis was 18 somewhat hamstrung by the inadequacies of the parties’ briefings, any evidence in 19 favor of Plaintiffs is insufficient to change the ultimate outcome. See Orquiza v. 20 Bello, 634 F. App'x 605, 605 (9th Cir. 2016) (affirming the district court’s 21 determination that the defendant was not an employer, despite finding that the 22 “district court’s analysis of” the defendant’s power to hire and fire plaintiffs was 23 “inapt”); see also Montoya v. 3PD, Inc., No. CV-13-8068-PCT-SMM, 2014 WL 24 3385116, at *3–5 (D. Ariz. July 10, 2014) (finding summary judgment in favor of 25 defendants when the record contradicted plaintiff’s assertions) appeal dismissed, 26 9th Cir. Case #14-16805 (Aug 10, 2015). Defendants are entitled to summary 27 judgement as to this claim. 28 ORDER GRANTING DEFENDANTS’ CROSS-MOTION FOR SUMMARY 1 II. Damages 2 Both parties submitted briefing on the issue of damages. Specifically, both 3 parties submitted briefing on how the Court should calculate the amount of time 4 for which Plaintiffs should be compensated. 5 Plaintiffs contend that they should be compensated for the time between 6 their first and last call each day in accordance with the “continuous workday rule.” 7 ECF No. 93 at 10 (citing IBP, Inc. v. Alvarez, 546 U.S. 21, 29 (2005). In the 8 alternative, Plaintiffs contend that they should be compensated for their spent 9 driving from service call to service call. Id. at 11 (citing United Transp. Union 10 Loc. 1745 v. City of Albuquerque, 178 F.3d 1109, 1119 (10th Cir. 1999). 11 Defendants, however, urge the Court to instead determine when Plaintiffs were 12 “engaged to wait” or “waiting to be engaged” in order to calculate how many hours 13 Plaintiffs should be compensated for. ECF No. 5–6 (citing Berry v. Cnty. of 14 Sonoma, 30 F.3d 1174, 1180 (9th Cir. 1994). 15 However, having determined that Plaintiffs were not employees for FLSA 16 purposes, the Court need not make a finding as to which portions of Plaintiffs’ time 17 were compensable.13 18 III. State Court Claims and Supplemental Jurisdiction 19 Having determined that Defendants are entitled to summary judgment on 20 Plaintiffs’ federal claims, Plaintiffs’ only remaining claims are claims under State 21 law. This Court had supplemental jurisdiction over these claims, pendant to 22 Plaintiffs’ claims under § 1983. See 28 U.S.C. § 1367(a). However, if “the district 23 court has dismissed all claims over which it has original jurisdiction,” the Court 24 may decline to exercise supplemental jurisdiction over the remaining state law 25 26 13 See Bonnette, 704 F.2d at 1468 (“[i]n order for the minimum wage provisions of the 27 FLSA to apply . . . [plaintiffs] must be “employers” . . . within the meaning of the 28 FLSA”). ORDER GRANTING DEFENDANTS’ CROSS-MOTION FOR SUMMARY 1 claims. 28 U.S.C. § 1367(c); see Union Mine Workers of Am. v. Gibbs, 383 U.S. 2 715, 726 (1966); see also Acri v. Varian Assocs., Inc., 114 F.3d 999, 1000 (9th Cir. 3 1997) (“Certainly, if the federal claims are dismissed before trial, even though not 4 insubstantial in a jurisdictional sense, the state claims should be dismissed as 5 well.”). 6 Given that the Court has resolved all federal claims giving rise to this 7 Court’s original jurisdiction in favor of Defendant, the Court declines to exercise 8 supplemental jurisdiction over Plaintiffs’ remaining state law claims. See Ove v. 9 Gwinn, 264 F.3d 817, 826 (9th Cir. 2001) (“A court may decline to exercise 10 supplemental jurisdiction over related state-law claims once it has dismissed all 11 claims over which it has original jurisdiction.”). Therefore, the Court dismisses 12 Plaintiffs’ state law claims without prejudice for lack of jurisdiction. The state 13 courts are still available to Plaintiffs to pursue their state law claims. 14 CONCLUSION 15 Based on the foregoing, IT IS HEREBY ORDERED: 16 1. Plaintiffs’ Motion for Summary Judgment (ECF No. 93) is DENIED. 17 2. Defendants’ Cross-motion for Summary Judgment (ECF No. 106) is 18 GRANTED. 19 3. Plaintiffs’ Fair Labor Standard Act claims against Defendants are 20 DISMISSED WITH PREJUDICE. 21 4. The Court declines to exercise its supplemental jurisdiction; 22 consequently, Plaintiffs’ state law claims are DISMISSED WITHOUT 23 PREJUDICE for lack of jurisdiction. 24 5. All pending motions are DENIED AS MOOT.14 25 26 27 14 Specifically, the Court is aware of a pending Motion to Appear and Testify Via 28 Electronic Means (ECF No. 133). ORDER GRANTING DEFENDANTS’ CROSS-MOTION FOR SUMMARY 1 IT IS SO ORDERED. The District Court Executive is directed to file this 2|| Order and provide copies to counsel. Judgment shall be entered for Defendants 3|| and the file shall be CLOSED. 4 DATED December 22, 2022. (0 Ae. oy oN ALEXANDER C. EKSTROM = UNITED STATES MAGISTRATE JUDGE

9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENT - 18