Kantor v. Monument Homes Realty & Investment, LLC

Filing 17

ORDER denying Dfts' 15 Motion to Dismiss Case. The Court will set a case management conference by separate order. Signed by Judge David G Campbell on 4/28/09.(KMG)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 WO IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA ) ) ) Plaintiff, ) ) vs. ) Monument Homes Realty & Investment, ) LLC; HA Developers/Monument Homes ) ) Inc.; and Monument Homes, ) ) Defendants. ) ) Gregory R. Kantor, No. CV-08-1451-PHX-DGC ORDER Plaintiff began working for Defendants as an assistant sales manager in July 2007. Plaintiff's employment ended on April 16, 2008. Plaintiff filed an amended complaint against Defendants asserting federal and state law claims based on Defendants' alleged failure to pay Plaintiff wages and commissions and alleged continued use of Plaintiff's name to retain clients. Dkt. #10. Defendants have filed a joint answer and motion to dismiss. Dkt. ##14-15. Plaintiff has filed a response to the motion. Dkt. #16. For reasons that follow, the Court will deny the motion. Rule 7.2 of the Local Rules of Civil Procedure provides that "upon any motion, the moving party shall serve and file with the motion's papers a memorandum setting forth the points and authorities relied on in support of the motion." LRCiv 7.2(b). Defendants have not filed the supporting memorandum required by Local Rule 7.2. Defendants assert that the 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 complaint fails to state a claim for relief and the Court lacks subject matter jurisdiction (Dkt. ##14-15 1, 11), but present no facts or argument in support of these assertions. Nor have Defendants filed a reply memorandum to Plaintiff's response. See LRCiv 7.2(d); Fed. R. Civ. P. 6 (setting forth time limits for motion papers). Plaintiff has alleged federal question jurisdiction based on his claim under the Fair Labor Standards Act, 29 U.S.C. 201 et seq. Dkt. #10 1-2, 11-14; see 28 U.S.C. 1331. Defendants have not shown that the complaint fails to "plead `enough facts to state a claim to relief that is plausible on its face.'" Clemens v. DaimlerChrysler Corp., 534 F.3d 1017, 1022 (9th Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The motion to dismiss will therefore be denied. IT IS ORDERED: 1. 2. Defendants' motion to dismiss (Dkt. #15) is denied. The Court will set a case management conference by separate order. DATED this 28th day of April, 2009. -2-

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