1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
8 Michael Vail, et al., No. CV-18-00908-PHX-GMS 9 Plaintiffs, ORDER 10 v. 11 Kopper Crest Manor on Harris LLC, et al., 12 Defendants. 13 Kopper Crest Manor on Harris LLC and Debera L. Kopp, 14
Counterclaimants, 15
16 v.
17 Michael Vail and Sarah Gulley,
18 Counterdefendants. 19 20 Pending before the Court is the Motion for Summary Judgment of Plaintiffs Michael 21 Vail and Sarah Gulley (Doc. 54). Plaintiffs move for summary judgment on their own 22 claims as well as the counterclaim of Defendant Debera L. Kopp. For the following reasons 23 the motion is granted.1 24 BACKGROUND 25 Debera Kopp is the sole owner of Kopper Crest Manor on Harris LLC, a care center 26 for the elderly. Michael Vail and Sarah Gulley allege that they were full-time employees
27 1 Defendant has requested a hearing. The request is denied. The parties have thoroughly discussed the law and the evidence, and oral argument will not aid the Court’s decision. 28 See Lake at Las Vegas Investors Group, Inc. v. Pac. Malibu Dev., 933 F.2d 724, 729 (9th Cir. 1991). 1 of Ms. Kopp’s company. They allege that they performed a total of 219 hours of work for 2 the company between December 29, 2017 and February 9, 2018 but were not compensated 3 in any way. Vail and Gulley filed this action against both Ms. Kopp and Kopper Crest 4 Manor LLC, alleging violations of the Fair Labor Standards Act (“FLSA”), the Arizona 5 Minimum Wage Statute, and the Arizona Wage Statute. Ms. Kopp brought a counterclaim 6 that included a single count of “civil conversion/theft.” (Doc. 25 at 16.) 7 On December 4, 2018, Plaintiffs served their First Set of Requests for Admissions 8 (“RFAs”). A telephonic hearing was later held before the Court on February 8, 2019, 9 during which Ms. Kopp avowed that the email address to which the RFAs were sent had 10 been hacked and that she had not received them, either through email or physical mail. Ms. 11 Kopp stated that she had “changed [her] email.” (Doc. 66 at 5.) 12 Plaintiffs now move for summary judgment on their claims and on Ms. Kopp’s 13 counterclaim. They contend that Ms. Kopp failed to respond to the RFAs, and she is 14 therefore deemed as having admitted the statements in the RFAs. Plaintiffs’ Motion relies 15 on those admissions to show that there are no disputes of material fact and that they are 16 entitled to summary judgment. 17 DISCUSSION 18 I. Legal Standard 19 A principal purpose of summary judgment is to identify factually unsupported 20 claims and dispose of them. Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986). 21 Summary judgment is appropriate if the evidence, viewed in the light most favorable to the 22 nonmoving party, shows “that there is no genuine issue as to any material fact and that the 23 movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). Only disputes 24 over facts that might affect the outcome of the suit will preclude the entry of summary 25 judgment, and the disputed evidence must be “such that a reasonable jury could return a 26 verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 27 (1986). 28 / / / 1 “[A] party seeking summary judgment always bears the initial responsibility of 2 informing the district court of the basis for its motion and identifying those portions of [the 3 record] which it believes demonstrate the absence of a genuine issue of material fact.” 4 Celotex, 477 U.S. at 323. Parties opposing summary judgment are then required to “cit[e] 5 to particular parts of materials in the record” that either establish a genuine dispute or 6 “show[] that the materials cited do not establish the absence . . . of a genuine dispute.” Fed. 7 R. Civ. Pro. 56(c)(1). If the non-moving party’s opposition fails to do so, the court is not 8 required to comb through the record on its own to come up with reasons to deny a motion 9 for summary judgment. Carmen v. S.F. Unified Sch. Dist., 237 F.3d 1026, 1029 (9th Cir. 10 2001) (citing Forsberg v. Pacific N.W. Bell Tel. Co., 840 F.2d 1409, 1418 (9th Cir. 1988)). 11 II. Analysis 12 Plaintiffs’ motion hinges on whether Ms. Kopp admitted the statements contained 13 in the RFAs. As explained in the Court’s prior order, Ms. Kopp is deemed to have done 14 so. That being the case, she has admitted almost all of the elements required to prove 15 Plaintiffs claims against her, and Plaintiffs are entitled to judgment in their favor on their 16 FLSA claim and their two Arizona state law claims. Similarly, Ms. Kopp is deemed to 17 have admitted facts that demonstrate that Plaintiffs are entitled to judgment in their favor 18 on Kopp’s counterclaim. 19 A. Plaintiffs are entitled to summary judgment on their FLSA claim. 20 The Fair Labor Standards Act mandates the payment of a minimum wage for work 21 performed. See 29 U.S.C. § 206; Probert v. Family Centered Services of Alaska, Inc., 651 22 F.3d 1007, 1009 (9th Cir. 2011). “An FLSA claim has three elements: . . . (1) plaintiff was 23 employed by defendant during the relevant period; (2) plaintiff was a covered employee; 24 and (3) the defendant failed to pay plaintiff minimum wage and/or overtime pay.” 25 Quinonez v. Reliable Auto Glass, LLC, No. CV-12-000452-PHX-GMS, 2012 WL 26 2848426, at *1–*2 (D. Ariz. July 11, 2012) (alterations omitted). 27 Defendant’s admissions establish most of the elements of Plaintiffs’ FLSA claim. 28 Ms. Kopp admits that she employed Plaintiffs and that she failed to pay them the applicable 1 minimum wage—indeed, she admits that she failed to pay them any wages at all for 219 2 hours of work performed by each. (Doc. 55-3 at 15–16.) 3 But Plaintiff did not explicitly admit, by failing to respond to the RFAs, that 4 Plaintiffs were “covered employees.” However, the evidence fails to disclose a dispute of 5 fact on this point. The FLSA’s minimum wage requirement applies to “each . . . employee[] 6 who in any workweek is engaged in commerce or in the production of goods for commerce, 7 or is employed in an enterprise engaged in commerce or in the production of goods for 8 commerce.” 29 U.S.C. § 206(a). Thus, coverage under the Act may be established either 9 by showing “individual coverage” or “enterprise coverage.” Tony & Susan Alamo Found. 10 v. Sec’y of Labor, 471 U.S. 290, 306 n.8 (1985); Chao v. A-One Medical Services, Inc., 11 346 F.3d 908, 914 (9th Cir. 2003). The FLSA definition of an “enterprise engaged in 12 commerce” includes entities “that . . . [are] engaged in the operation of . . . an institution 13 primarily engaged in the care of the sick, the aged, or the mentally ill or defective who 14 reside on the premises of such institution.” Id. § 203(s)(1). Ms. Kopp admitted in her 15 Answer that Kopper Crest Manor is an assisted living facility for the elderly. (Doc. 14 at 16 5.) She also admitted, by failing to respond to Plaintiffs’ RFAs, that she owns Kopper 17 Crest Manor, and that the company employed the Plaintiffs.
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
8 Michael Vail, et al., No. CV-18-00908-PHX-GMS 9 Plaintiffs, ORDER 10 v. 11 Kopper Crest Manor on Harris LLC, et al., 12 Defendants. 13 Kopper Crest Manor on Harris LLC and Debera L. Kopp, 14
Counterclaimants, 15
16 v.
17 Michael Vail and Sarah Gulley,
18 Counterdefendants. 19 20 Pending before the Court is the Motion for Summary Judgment of Plaintiffs Michael 21 Vail and Sarah Gulley (Doc. 54). Plaintiffs move for summary judgment on their own 22 claims as well as the counterclaim of Defendant Debera L. Kopp. For the following reasons 23 the motion is granted.1 24 BACKGROUND 25 Debera Kopp is the sole owner of Kopper Crest Manor on Harris LLC, a care center 26 for the elderly. Michael Vail and Sarah Gulley allege that they were full-time employees
27 1 Defendant has requested a hearing. The request is denied. The parties have thoroughly discussed the law and the evidence, and oral argument will not aid the Court’s decision. 28 See Lake at Las Vegas Investors Group, Inc. v. Pac. Malibu Dev., 933 F.2d 724, 729 (9th Cir. 1991). 1 of Ms. Kopp’s company. They allege that they performed a total of 219 hours of work for 2 the company between December 29, 2017 and February 9, 2018 but were not compensated 3 in any way. Vail and Gulley filed this action against both Ms. Kopp and Kopper Crest 4 Manor LLC, alleging violations of the Fair Labor Standards Act (“FLSA”), the Arizona 5 Minimum Wage Statute, and the Arizona Wage Statute. Ms. Kopp brought a counterclaim 6 that included a single count of “civil conversion/theft.” (Doc. 25 at 16.) 7 On December 4, 2018, Plaintiffs served their First Set of Requests for Admissions 8 (“RFAs”). A telephonic hearing was later held before the Court on February 8, 2019, 9 during which Ms. Kopp avowed that the email address to which the RFAs were sent had 10 been hacked and that she had not received them, either through email or physical mail. Ms. 11 Kopp stated that she had “changed [her] email.” (Doc. 66 at 5.) 12 Plaintiffs now move for summary judgment on their claims and on Ms. Kopp’s 13 counterclaim. They contend that Ms. Kopp failed to respond to the RFAs, and she is 14 therefore deemed as having admitted the statements in the RFAs. Plaintiffs’ Motion relies 15 on those admissions to show that there are no disputes of material fact and that they are 16 entitled to summary judgment. 17 DISCUSSION 18 I. Legal Standard 19 A principal purpose of summary judgment is to identify factually unsupported 20 claims and dispose of them. Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986). 21 Summary judgment is appropriate if the evidence, viewed in the light most favorable to the 22 nonmoving party, shows “that there is no genuine issue as to any material fact and that the 23 movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). Only disputes 24 over facts that might affect the outcome of the suit will preclude the entry of summary 25 judgment, and the disputed evidence must be “such that a reasonable jury could return a 26 verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 27 (1986). 28 / / / 1 “[A] party seeking summary judgment always bears the initial responsibility of 2 informing the district court of the basis for its motion and identifying those portions of [the 3 record] which it believes demonstrate the absence of a genuine issue of material fact.” 4 Celotex, 477 U.S. at 323. Parties opposing summary judgment are then required to “cit[e] 5 to particular parts of materials in the record” that either establish a genuine dispute or 6 “show[] that the materials cited do not establish the absence . . . of a genuine dispute.” Fed. 7 R. Civ. Pro. 56(c)(1). If the non-moving party’s opposition fails to do so, the court is not 8 required to comb through the record on its own to come up with reasons to deny a motion 9 for summary judgment. Carmen v. S.F. Unified Sch. Dist., 237 F.3d 1026, 1029 (9th Cir. 10 2001) (citing Forsberg v. Pacific N.W. Bell Tel. Co., 840 F.2d 1409, 1418 (9th Cir. 1988)). 11 II. Analysis 12 Plaintiffs’ motion hinges on whether Ms. Kopp admitted the statements contained 13 in the RFAs. As explained in the Court’s prior order, Ms. Kopp is deemed to have done 14 so. That being the case, she has admitted almost all of the elements required to prove 15 Plaintiffs claims against her, and Plaintiffs are entitled to judgment in their favor on their 16 FLSA claim and their two Arizona state law claims. Similarly, Ms. Kopp is deemed to 17 have admitted facts that demonstrate that Plaintiffs are entitled to judgment in their favor 18 on Kopp’s counterclaim. 19 A. Plaintiffs are entitled to summary judgment on their FLSA claim. 20 The Fair Labor Standards Act mandates the payment of a minimum wage for work 21 performed. See 29 U.S.C. § 206; Probert v. Family Centered Services of Alaska, Inc., 651 22 F.3d 1007, 1009 (9th Cir. 2011). “An FLSA claim has three elements: . . . (1) plaintiff was 23 employed by defendant during the relevant period; (2) plaintiff was a covered employee; 24 and (3) the defendant failed to pay plaintiff minimum wage and/or overtime pay.” 25 Quinonez v. Reliable Auto Glass, LLC, No. CV-12-000452-PHX-GMS, 2012 WL 26 2848426, at *1–*2 (D. Ariz. July 11, 2012) (alterations omitted). 27 Defendant’s admissions establish most of the elements of Plaintiffs’ FLSA claim. 28 Ms. Kopp admits that she employed Plaintiffs and that she failed to pay them the applicable 1 minimum wage—indeed, she admits that she failed to pay them any wages at all for 219 2 hours of work performed by each. (Doc. 55-3 at 15–16.) 3 But Plaintiff did not explicitly admit, by failing to respond to the RFAs, that 4 Plaintiffs were “covered employees.” However, the evidence fails to disclose a dispute of 5 fact on this point. The FLSA’s minimum wage requirement applies to “each . . . employee[] 6 who in any workweek is engaged in commerce or in the production of goods for commerce, 7 or is employed in an enterprise engaged in commerce or in the production of goods for 8 commerce.” 29 U.S.C. § 206(a). Thus, coverage under the Act may be established either 9 by showing “individual coverage” or “enterprise coverage.” Tony & Susan Alamo Found. 10 v. Sec’y of Labor, 471 U.S. 290, 306 n.8 (1985); Chao v. A-One Medical Services, Inc., 11 346 F.3d 908, 914 (9th Cir. 2003). The FLSA definition of an “enterprise engaged in 12 commerce” includes entities “that . . . [are] engaged in the operation of . . . an institution 13 primarily engaged in the care of the sick, the aged, or the mentally ill or defective who 14 reside on the premises of such institution.” Id. § 203(s)(1). Ms. Kopp admitted in her 15 Answer that Kopper Crest Manor is an assisted living facility for the elderly. (Doc. 14 at 16 5.) She also admitted, by failing to respond to Plaintiffs’ RFAs, that she owns Kopper 17 Crest Manor, and that the company employed the Plaintiffs. There is therefore no dispute 18 of fact over whether Plaintiffs were employees covered by the FLSA’s minimum wage 19 requirements. 20 Since Ms. Kopp has admitted that (1) she employed Plaintiffs through her company, 21 (2) her company qualifies as an “enterprise engaged in commerce” under the FLSA, and 22 (3) she did not pay Plaintiffs for the work they performed, there are no disputes of material 23 fact regarding Plaintiffs’ FLSA claim, and they are entitled to judgment as a matter of law. 24 Summary judgment is therefore granted in Plaintiffs’ favor on the FLSA minimum wage 25 claim.
26 B. Plaintiffs are entitled to judgment in their favor on their Arizona Minimum Wage Statute claim. 27 Arizona law requires that “employers shall pay employees no less than the minimum 28 wage,” set forth in the statute. Ariz. Rev. Stat. § 23-363(A). Ms. Kopp, as outlined above, 1 admitted to employing both Plaintiffs. She also admitted that she failed to pay either of 2 them for 219 hours of work. She therefore failed to pay them the minimum wage required 3 under the statute. There are no disputes of material facts regarding this claim and Plaintiffs 4 are entitled to judgment in their favor. Summary judgment is therefore granted.
5 C. Plaintiffs are entitled to judgment in their favor on their Arizona Wage Statute claim. 6 The Arizona Wage Statute forbids employers from withholding or diverting “any 7 portion of an employee’s wages” unless one of three exceptions applies. Ariz. Rev. Stat. 8 § 23-352. Ms. Kopp admits that she did not pay Plaintiffs for any of the hours worked and 9 fails to point to any evidence showing that any of the three exceptions from section 23-352 10 apply. Plaintiffs are therefore entitled to judgment in their favor on this claim. 11 D. Plaintiffs are entitled to judgment in their favor on Ms. Kopp’s 12 counterclaim for conversion. 13 In Arizona, “[c]onversion is an intentional exercise of dominion or control over a 14 chattel which so seriously interferes with the right of another to control it that the actor 15 may justly be required to pay the other the full value of the chattel.” Strawberry Water Co. 16 v. Paulsen, 220 Ariz. 401, 406, 207 P.3d 654, 659 (Ariz. Ct. App. 2008) (citation, internal 17 quotation marks, and alteration omitted). “To maintain an action for conversion, a plaintiff 18 must have had the right to immediate possession of the personal property at the time of the 19 alleged conversion.” Case Corp. Gehrke, 208 Ariz. 140, 143, 91 P.3d 362, 165 (Ariz. Ct. 20 App. 2004). 21 Here, Ms. Kopp’s counterclaim alleges that Plaintiffs took various property 22 belonging to her. (Doc. 25 at 14–15.) She also alleges that Plaintiffs “commandeered” her 23 1997 Toyota Camry. However, by failing to respond to the RFAs Ms. Kopp has admitted 24 that she did not own the Camry and that Plaintiffs did not unlawfully take any other 25 property from her. (Doc. 55-3 at 16–17.) She additionally admits that she filed a police 26 report against Plaintiffs regarding the Camry because they filed this action against her. (Id. 27 at 15.) Ms. Kopp’s counterclaim therefore fails as a matter of law and Plaintiffs are entitled 28 to judgment in their favor. 1 E. Plaintiffs are entitled to treble damages, interest, attorneys’ fees, and costs. 2 3 Under the Arizona Wage Statute, “if an employer, . . . fails to pay wages due any 4 employee, the employee may recover in a civil action against an employer or former 5 employer an amount that is treble the amount of the unpaid wages.” Ariz. Rev. Stat. § 23- 6 355(A). The Arizona minimum wage for the applicable period was $10.50. See Ariz. Rev. 7 Stat. § 23-363(A)(2). Ms. Kopp admits that each Plaintiff worked 219 hours for which she 8 never paid the wages due to them. Under the Arizona statute, then, each Plaintiff is entitled 9 to recover $6,898.50. 10 Additionally, 29 U.S.C. § 216 provides that courts presiding over FLSA actions 11 “shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable 12 attorney’s fee to be paid by the defendant, and costs of the action.” 29 U.S.C. § 216(b). 13 The award of attorneys’ fees under § 216 is mandatory, but “the amount awarded is within 14 the discretion of the court. Orozco v. Borenstein, No. CV-11-02305-PHX-FJM, 2013 WL 15 4543836, at *2 (D. Ariz. Aug. 28, 2013) (citing Houser v. Matson, 447 F.2d 860, 863 (9th 16 Cir. 1971)). In addition to fees and costs, Plaintiffs are also entitled to interest under Ariz. 17 Rev. Stat. § 23-364(g) (“Any employer who fails to pay the wages or earned paid sick time 18 required under this article shall be required to pay the employee the balance of the wages 19 or earned paid sick time owed, including interest thereon.”) (emphasis added). 20 In sum, as the prevailing plaintiff under the FLSA and Arizona law, Plaintiffs are 21 entitled to not only the damages stated above, but attorneys’ fees, costs, and interest in an 22 amount to be determined upon a motion by Plaintiffs under L.R. Civ. 54.2. 23 IT IS THEREFORE ORDERED that the Motion for Summary Judgment of 24 Plaintiffs Michael Vail and Sarah Gulley (Doc. 54) is GRANTED. 25 / / / 26 / / / 27 / / / 28 1 IT IS FURTHER ORDERED directing the Clerk of Court to terminate this action 2|| against Defendant Debera L. Kopp and enter judgment accordingly. 3 Dated this 3rd day of July, 2019. Wars ) 5 i Hleertag Seen! 6 Chief United States District Judge 7 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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