1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Kelli Salazar, et al., No. CV-19-05760-PHX-SMB
10 Plaintiffs, ORDER
11 v.
12 Driver Provider Phoenix LLC, et al.,
13 Defendants. 14 15 Pending before the Court is Defendants’ Motion for Judgment on the Pleadings 16 (“MJP”), (Doc. 210.), and Plaintiffs’ Motion to Strike the MJP (Doc. 211.) Both motions 17 are fully briefed. (See Docs. 230–32.) Having considered the parties’ briefing and 18 arguments, as well as the relevant rules and caselaw, the Court will grant Plaintiffs’ Motion 19 to Strike Defendants’ MJP for the reasons explained below. 20 I. BACKGROUND 21 Plaintiffs’ Fourth Amended Complaint (“Complaint”) brings collective action and 22 class action claims, alleging Defendants’ failure to compensate minimum and overtime 23 wages. (Doc. 114 at 1–2 ¶¶ 1–16.) Specifically, Plaintiffs assert Defendants failed to pay: 24 (1) overtime and minimum wages in violation of the Fair Labor Standards Act (“FLSA”); 25 (2) overtime wages in violation of the Arizona Wage Act (“AWA”), under A.R.S. § 23- 26 351; and (3) minimum wages in violation of the Arizona Minimum Wage Act, under 27 A.R.S. § 23-363. (Id. at 2, 22–24 ¶¶ 12–14, 177–95.) Defendants’ Answer denies 28 Plaintiffs’ allegations and asserts multiple affirmative defenses. (See Doc. 124 at 11–14 1 ¶¶ 1–24.) However, Defendants argue for the first time in the MJP that Plaintiffs’ FLSA 2 claim preempts their AWA claim. (See Doc. 210.) Plaintiffs thus filed a Motion to Strike 3 Defendants’ MJP on the grounds that: (1) Defendants failed to meet and confer under Local 4 Rule of Civil Procedure 12.1(c); and (2) Defendants raising the preemption defense for the 5 first time was prohibited by General Order 17-08, (Doc. 4.). (See Doc. 211 at 2.) 6 II. LEGAL STANDARD 7 Before filing a motion under Local Rule 12.1(c), the movant must certify that it 8 “notified the opposing party of the issues asserted in the motion and the parties were unable 9 to agree that the pleading was curable in any part by a permissible amendment offered by 10 the pleading party.” In other words, “Local Rule 12.1(c) provides that a party 11 contemplating filing . . . a motion for judgment on the pleadings under Rule 12(c) must 12 first engage in a meaningful conversation with its adversary about whether the perceived 13 deficiencies might be cured by amendment.” Cartessa Aesthetics LLC v. Aesthetics 14 Biomedical Inc., No. CV-19-05827-PHX-DWL, 2021 WL 778541, at *3 (D. Ariz. Mar. 1, 15 2021). Furthermore, a “movant may comply with this rule through personal, telephonic, 16 or written notice of the issues that it intends to assert in a motion.” LRCiv 12.1(c). If these 17 certification requirements are not met, the Court may summarily strike the Motion. See 18 id.; see also Leibel v. City of Buckeye, No. CV-18-01743-PHX-DWL, 2020 WL 516671, 19 at *2 (D. Ariz. Jan. 31, 2020) (noting the Court is a “stickler for compliance with Local 20 Rule 12.1(c)”). 21 III. DISCUSSION 22 A. Local Rule 12.1(c) 23 The Court finds that Defendants failed to satisfy the meet and confer requirements 24 under Local Rule 12.1(c). Defendants assert the MJP certification complied with Local 25 Rule 12.1(c). (See Doc. 210 at 2.) The certification also asserts: 26 Pursuant to Local Rule 7.2(j), Defendants certify that undersigned counsel 27 conferred with counsel for Plaintiffs over the phone and via email. Counsel 28 for the parties were unable to reach an agreement regarding Plaintiffs’ claims 1 for overtime compensation under the Arizona Wage Act. Therefore, 2 Defendants moved forward with filing their Motion. 3 (Doc. 210-1.) To clarify, Local Rule of Civil Procedure 7.2(j) governs the certification 4 requirements for discovery motions, which has a different certification standard than 5 motions for judgment on the pleadings. Compare LRCiv 7.2(j), with LRCiv 12.1(c). Local 6 Rule 12.1(c) thus controls in this context. 7 Defendants certified to having met and conferred with Plaintiffs to discuss the issues 8 raised in the MJP. Yet Plaintiffs assert their only conversations with Defendants about the 9 AWA and preemption occurred: (1) in November 2021, during confidential settlement 10 discussions; and (2) during a January 5, 2022 phone call where Plaintiffs denied 11 Defendants’ requested stipulation to amend their Answer to raise the preemption defense. 12 (See Docs. 211 at 2–3; 211-1 at 1–2 ¶¶ 3–5.) Plaintiffs also assert that Defendants never 13 gave notice of their intent to file the MJP, and that the January 2022 call revolved around 14 Defendants’ requested stipulation to amend their Answer, not to file the MJP. (Id.) 15 Plaintiffs assert that at the end of the January 5 phone call, Defendants stated they would 16 be filing a motion to amend their Answer. (Doc. 211-1 at 3 ¶ 5.) 17 Defendants contend that during the January 5 call, Plaintiffs’ counsel declined to 18 voluntarily dismiss the overtime claim under the AWA. (See Doc. 230-1 at 2 ¶ 7.) 19 Therefore, Defendants believed “the parties were at a stalemate” and “further meet and 20 confers on this issue would be futile.” (Id. at 3 ¶ 8.) Following the call, Defendants 21 conducted more research and determined amending their Answer was unnecessary for the 22 Court to decide the preemption issue. (Id. ¶ 9.) Defendants further concluded that “[t]o 23 avoid unnecessary briefing and amending the answer,” they would instead file the MJP. 24 (Id.) 25 The Court finds that Defendants have failed to satisfy the meet and confer 26 requirements set forth in Local Rule 12.1(c). First, Defendants attempt to rely on 27 confidential settlement discussions, which the Court shall not consider. The parties’ 28 Settlement Conference Order, (Doc. 156 at 1.), explicitly states: “Rule 408 of the Federal 1 Rules of Evidence applies to all aspects of the Settlement Conference. All communications 2 and information exchanged during the settlement process, not otherwise discoverable, will 3 not be admissible in evidence for any purpose.” See Suenos, LLC v. Goldman, No. CV10- 4 1034-TL, 2014 WL 460965, at *1, 6 (D. Ariz. Feb. 5, 2014) (sanctioning an attorney for 5 violating a Settlement Conference Order by disclosing confidential communications and 6 noting “[s]ettlement communications are, as a general rule, sacrosanct. Without the 7 protection provided these communications, the settlement process would be chilled.”). 8 Without the settlement discussions, the Court exclusively considers whether the 9 parties sufficiently met and conferred during the January 5 phone call. Both parties agree 10 no MJP discussions occurred during the call. The parties discussed Defendants’ requested 11 stipulation to amend their Answer to assert the preemption defense. Plaintiffs declined. 12 Before the call ended, Defendants informed Plaintiffs they were going to file a motion to 13 amend their Answer. Instead, Defendants filed the MJP, which asserted preemption 14 deficiencies within Plaintiffs’ Complaint—something that could not be cured by 15 Defendants amending their Answer. But even with Plaintiffs declining to amend their 16 Complaint on the call, the statement was made solely in the context of Defendants’ 17 requested stipulation to amend their Answer, not Defendants filing a motion for judgment 18 on the pleadings. 19 Between the January 5 call and Defendants filing the MJP, the parties had no 20 conversations about the AWA or preemption. Defendants thus deprived Plaintiffs of any 21 opportunity to discuss the issues raised in the MJP, or whether any curing amendments 22 could be made. Because Defendants failed to satisfy Local Rule 12.1(c)’s certification 23 requirements, the Court will strike the MJP. 24 B.
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Kelli Salazar, et al., No. CV-19-05760-PHX-SMB
10 Plaintiffs, ORDER
11 v.
12 Driver Provider Phoenix LLC, et al.,
13 Defendants. 14 15 Pending before the Court is Defendants’ Motion for Judgment on the Pleadings 16 (“MJP”), (Doc. 210.), and Plaintiffs’ Motion to Strike the MJP (Doc. 211.) Both motions 17 are fully briefed. (See Docs. 230–32.) Having considered the parties’ briefing and 18 arguments, as well as the relevant rules and caselaw, the Court will grant Plaintiffs’ Motion 19 to Strike Defendants’ MJP for the reasons explained below. 20 I. BACKGROUND 21 Plaintiffs’ Fourth Amended Complaint (“Complaint”) brings collective action and 22 class action claims, alleging Defendants’ failure to compensate minimum and overtime 23 wages. (Doc. 114 at 1–2 ¶¶ 1–16.) Specifically, Plaintiffs assert Defendants failed to pay: 24 (1) overtime and minimum wages in violation of the Fair Labor Standards Act (“FLSA”); 25 (2) overtime wages in violation of the Arizona Wage Act (“AWA”), under A.R.S. § 23- 26 351; and (3) minimum wages in violation of the Arizona Minimum Wage Act, under 27 A.R.S. § 23-363. (Id. at 2, 22–24 ¶¶ 12–14, 177–95.) Defendants’ Answer denies 28 Plaintiffs’ allegations and asserts multiple affirmative defenses. (See Doc. 124 at 11–14 1 ¶¶ 1–24.) However, Defendants argue for the first time in the MJP that Plaintiffs’ FLSA 2 claim preempts their AWA claim. (See Doc. 210.) Plaintiffs thus filed a Motion to Strike 3 Defendants’ MJP on the grounds that: (1) Defendants failed to meet and confer under Local 4 Rule of Civil Procedure 12.1(c); and (2) Defendants raising the preemption defense for the 5 first time was prohibited by General Order 17-08, (Doc. 4.). (See Doc. 211 at 2.) 6 II. LEGAL STANDARD 7 Before filing a motion under Local Rule 12.1(c), the movant must certify that it 8 “notified the opposing party of the issues asserted in the motion and the parties were unable 9 to agree that the pleading was curable in any part by a permissible amendment offered by 10 the pleading party.” In other words, “Local Rule 12.1(c) provides that a party 11 contemplating filing . . . a motion for judgment on the pleadings under Rule 12(c) must 12 first engage in a meaningful conversation with its adversary about whether the perceived 13 deficiencies might be cured by amendment.” Cartessa Aesthetics LLC v. Aesthetics 14 Biomedical Inc., No. CV-19-05827-PHX-DWL, 2021 WL 778541, at *3 (D. Ariz. Mar. 1, 15 2021). Furthermore, a “movant may comply with this rule through personal, telephonic, 16 or written notice of the issues that it intends to assert in a motion.” LRCiv 12.1(c). If these 17 certification requirements are not met, the Court may summarily strike the Motion. See 18 id.; see also Leibel v. City of Buckeye, No. CV-18-01743-PHX-DWL, 2020 WL 516671, 19 at *2 (D. Ariz. Jan. 31, 2020) (noting the Court is a “stickler for compliance with Local 20 Rule 12.1(c)”). 21 III. DISCUSSION 22 A. Local Rule 12.1(c) 23 The Court finds that Defendants failed to satisfy the meet and confer requirements 24 under Local Rule 12.1(c). Defendants assert the MJP certification complied with Local 25 Rule 12.1(c). (See Doc. 210 at 2.) The certification also asserts: 26 Pursuant to Local Rule 7.2(j), Defendants certify that undersigned counsel 27 conferred with counsel for Plaintiffs over the phone and via email. Counsel 28 for the parties were unable to reach an agreement regarding Plaintiffs’ claims 1 for overtime compensation under the Arizona Wage Act. Therefore, 2 Defendants moved forward with filing their Motion. 3 (Doc. 210-1.) To clarify, Local Rule of Civil Procedure 7.2(j) governs the certification 4 requirements for discovery motions, which has a different certification standard than 5 motions for judgment on the pleadings. Compare LRCiv 7.2(j), with LRCiv 12.1(c). Local 6 Rule 12.1(c) thus controls in this context. 7 Defendants certified to having met and conferred with Plaintiffs to discuss the issues 8 raised in the MJP. Yet Plaintiffs assert their only conversations with Defendants about the 9 AWA and preemption occurred: (1) in November 2021, during confidential settlement 10 discussions; and (2) during a January 5, 2022 phone call where Plaintiffs denied 11 Defendants’ requested stipulation to amend their Answer to raise the preemption defense. 12 (See Docs. 211 at 2–3; 211-1 at 1–2 ¶¶ 3–5.) Plaintiffs also assert that Defendants never 13 gave notice of their intent to file the MJP, and that the January 2022 call revolved around 14 Defendants’ requested stipulation to amend their Answer, not to file the MJP. (Id.) 15 Plaintiffs assert that at the end of the January 5 phone call, Defendants stated they would 16 be filing a motion to amend their Answer. (Doc. 211-1 at 3 ¶ 5.) 17 Defendants contend that during the January 5 call, Plaintiffs’ counsel declined to 18 voluntarily dismiss the overtime claim under the AWA. (See Doc. 230-1 at 2 ¶ 7.) 19 Therefore, Defendants believed “the parties were at a stalemate” and “further meet and 20 confers on this issue would be futile.” (Id. at 3 ¶ 8.) Following the call, Defendants 21 conducted more research and determined amending their Answer was unnecessary for the 22 Court to decide the preemption issue. (Id. ¶ 9.) Defendants further concluded that “[t]o 23 avoid unnecessary briefing and amending the answer,” they would instead file the MJP. 24 (Id.) 25 The Court finds that Defendants have failed to satisfy the meet and confer 26 requirements set forth in Local Rule 12.1(c). First, Defendants attempt to rely on 27 confidential settlement discussions, which the Court shall not consider. The parties’ 28 Settlement Conference Order, (Doc. 156 at 1.), explicitly states: “Rule 408 of the Federal 1 Rules of Evidence applies to all aspects of the Settlement Conference. All communications 2 and information exchanged during the settlement process, not otherwise discoverable, will 3 not be admissible in evidence for any purpose.” See Suenos, LLC v. Goldman, No. CV10- 4 1034-TL, 2014 WL 460965, at *1, 6 (D. Ariz. Feb. 5, 2014) (sanctioning an attorney for 5 violating a Settlement Conference Order by disclosing confidential communications and 6 noting “[s]ettlement communications are, as a general rule, sacrosanct. Without the 7 protection provided these communications, the settlement process would be chilled.”). 8 Without the settlement discussions, the Court exclusively considers whether the 9 parties sufficiently met and conferred during the January 5 phone call. Both parties agree 10 no MJP discussions occurred during the call. The parties discussed Defendants’ requested 11 stipulation to amend their Answer to assert the preemption defense. Plaintiffs declined. 12 Before the call ended, Defendants informed Plaintiffs they were going to file a motion to 13 amend their Answer. Instead, Defendants filed the MJP, which asserted preemption 14 deficiencies within Plaintiffs’ Complaint—something that could not be cured by 15 Defendants amending their Answer. But even with Plaintiffs declining to amend their 16 Complaint on the call, the statement was made solely in the context of Defendants’ 17 requested stipulation to amend their Answer, not Defendants filing a motion for judgment 18 on the pleadings. 19 Between the January 5 call and Defendants filing the MJP, the parties had no 20 conversations about the AWA or preemption. Defendants thus deprived Plaintiffs of any 21 opportunity to discuss the issues raised in the MJP, or whether any curing amendments 22 could be made. Because Defendants failed to satisfy Local Rule 12.1(c)’s certification 23 requirements, the Court will strike the MJP. 24 B. General Order 17-08 25 Plaintiffs’ Motion to Strike asserts that Defendants violated General Order 17-08 by 26 raising a preemption defense for the first time in the MJP. Because the Court is striking 27 the MJP, the Court will not reach the merits of this claim. 28 Accordingly, 1 IT IS ORDERED that Defendants’ Motion for Judgment on the Pleadings is stricken. 3 Dated this 12th day of September, 2022. 4 ———> 5 Sos > fonorable Susan M. Brnovich = 7 United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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