Shaver v. Arizona Fire & Water Restoration Incorporated

Filing 37

ORDER: Defendant's 16 Motion for Judgment on the Pleadings is DENIED. See order for complete details. Signed by Judge Neil V Wake on 4/5/12. (NKS)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Stewart Shaver and Maria Shaver, husband and wife, 10 No. CV 11-01815-PHX-NVW ORDER Plaintiffs, 11 vs. 12 Arizona Fire & Water Restoration, Inc., 13 Defendant. 14 15 Before the Court is Defendant’s Motion for Judgment on the Pleadings (Doc. 16). 16 17 The motion will be denied for the reasons stated below. 18 I. BACKGROUND 19 Plaintiff Shaver worked for Defendant Arizona Fire & Water Restoration as a 20 “project manager.” Plaintiff’s job was to provide written estimates to potential customers 21 (i.e., those needing restoration work after suffering fire damage, water damage, and so 22 forth), and if hired, to oversee the entire restoration project. Plaintiff was terminated by 23 Defendant on March 22, 2011. 24 employment, which he describes in significant detail in the complaint, Plaintiff believes 25 that defendant wrongfully withheld various wages owed to him before and after his 26 termination, including for overtime services. Plaintiff has alleged causes of action for 27 unpaid wages, violation of the Fair Labor Standards Act, breach of contract, and breach 28 of good faith and fair dealing. Based on the compensation plan governing his 1 II. LEGAL STANDARD 2 “Rules 12(b)(6) and 12(c) are substantially identical.” Strigliabotti v. Franklin 3 Resources, Inc., 398 F. Supp. 2d 1094, 1097 (N.D. Cal. 2005). Rule 12(c) motions for 4 judgment on the pleadings are therefore reviewed under the standard applicable to a Rule 5 12(b)(6) motion to dismiss for failure to state a claim. See Aldabe v. Aldabe, 616 F.2d 6 1089, 1093 (9th Cir. 1980). In ruling on a Rule 12(c) motion, the Court must “determine 7 whether the facts alleged in the complaint, to be taken for [the purposes of a Rule 12(c) 8 motion] as true, entitle the plaintiff to a legal remedy.” Strigliabotti, 398 F. Supp. 2d at 9 1097. “If the complaint fails to articulate a legally sufficient claim, the complaint should 10 be dismissed or judgment granted on the pleadings.” Id. A Rule 12(c) motion is thus 11 properly granted when, taking all the allegations in the pleading as true, the moving party 12 is entitled to judgment as a matter of law. Knappenberger v. City of Phoenix, 566 F.3d 13 936, 939 (9th Cir. 2009). As with a motion to dismiss, the analysis is generally limited to 14 the facts as stated in the complaint, but the “court may [also] consider evidence on which 15 the complaint ‘necessarily relies’ if: (1) the complaint refers to the document; (2) the 16 document is central to the plaintiff’s claim; and (3) no party questions the authenticity of 17 the copy attached to the . . . motion.” Marder v. Lopez. 450 F.3d 445, 448 (9th Cir. 18 2006). 19 III. ANALYSIS 20 A. Fair Labor Standards Act Claim 21 Defendant argues that Plaintiff’s overtime claim under the Fair Labor Standards 22 Act fails because plaintiff is an “outside salesperson,” or an “administrative employee,” 23 or a combination of the two — all of which are exempt from overtime requirements. 24 Defendant attempts to establish this contention partially through certain allegations in the 25 complaint, but largely through Plaintiff’s written job description. 26 contested the authenticity of this job description, and he relied on it in his complaint, so it 27 may be considered at the motion to dismiss phase even though technically outside the 28 pleadings. -2  Plaintiff has not 1 However, the Court’s ability to consider it does not mean it must be taken as true. 2 Plaintiff relies on the job description almost entirely for its account of the compensation 3 structure. To that extent, its accuracy is effectively undisputed. But Defendant relies on 4 it for significantly more, teasing from it Plaintiff’s supposed primary activities, even 5 though the job description may not necessarily match what Plaintiff actually did. 6 Perhaps for this reason, decisions discussing the outside salesperson and 7 administrative employee exemptions — including every decision Defendant cites — 8 nearly always result from a summary judgment motion after discovery into the duties the 9 plaintiff in fact performed for his or her employer. See, e.g., Velazquez-Fernandez v. 10 NCE Foods, Inc., 476 F.3d 6, 8 (1st Cir. 2007); Schmidt v. Eagle Waste & Recycling, 11 Inc., 598 F. Supp. 2d 928, 931 (W.D. Wis. 2009); Christopher v. SmithKlein Beecham 12 Corp., No. CV-08-1498-PHX-FJM, 2009 WL 4051075 (D. Ariz. Nov. 20, 2009); Black 13 v. Colaska Inc., No. C07-823JLR, 2008 WL 4681567 (W.D. Wash. Oct. 20, 2008). 14 Plaintiff’s actual duties simply cannot be determined at the pleading phase. 15 Accordingly, Defendant’s motion will be denied as to Plaintiff’s Fair Labor Standards 16 Act claim. 17 B. Statute of Limitations on State Law Claims 18 Plaintiff’s unpaid wages, breach of contract, and breach of good faith and fair 19 dealing claims all address the same conduct — Defendant’s failure to pay amounts 20 allegedly owed to Plaintiff. Defendant argues that any claim for wages accruing before 21 September 15, 2010 is barred by the statute of limitations. Defendant’s argument may 22 have merit, but on the face of the pleadings alone it is impossible to tell when Plaintiff’s 23 various unpaid wages claims accrued. Further, the scope of discovery would not be 24 materially different if these claims were dismissed now. 25 motion will be denied as to Plaintiff’s unpaid wages, breach of contract, and breach of 26 good faith and fair dealing claims. 27 28 -3  Accordingly, Defendant’s 1 IV. CONCLUSION 2 Although the Court will deny Defendant’s motion, it does so in the face of a 3 compelling reasons to dismiss this case considering Plaintiff’s counsel’s extreme delays 4 and failure to follow court orders thus far. On the day Plaintiff’s response was originally 5 due, counsel filed a motion for a two-day extension of time because of “long-standing 6 travel plans that changed at the last minute, making the undersigned unable to thoroughly 7 respond to [Defendant]’s Motion by tonight’s deadline.” (Doc. 22.) The Court granted 8 that motion. (Doc. 23.) Two days later — the new due date — at 11:58 p.m., counsel 9 again filed for an extension until the following Monday, based on recently discovered 10 evidence of handwritten notes that Plaintiff while working for Defendant. Counsel did 11 not explain how these notes, which were obviously outside the pleadings, could influence 12 the motion, but asked for further time to fully review these documents, including a “built 13 in . . . cushion . . . to ensure that there is no need for a third extension.” (Doc. 24.) The 14 Court granted that motion, extending the response deadline to the following Tuesday 15 (because of a Monday holiday). (Doc. 25.) 16 On that following Tuesday, counsel filed nothing. The next day, counsel 17 requested “a third and final extension” until the coming Friday. “The reason for this 18 request is because undersigned counsel had planned to Respond . . . over the Holiday 19 weekend, but was unable to due to an unplanned family obligation.” (Doc. 28.) The 20 Court first denied that motion (Doc. 29), then reconsidered and granted a five-day 21 extension, until February 29, 2012 (Doc. 30). On February 29 at 11:57 p.m., counsel 22 filed a fourth motion for extension of time (although styled as his third motion), claiming 23 he had suffered a physical injury. (Doc. 31.) The Court granted that motion, extending 24 Plaintiff’s deadline “to March 12, 2012, at 5:00 p.m. No further extensions will be 25 granted.” (Doc. 32.) March 12 and 5:00 p.m. came and went, with no filing from 26 Plaintiff. Seven hours later — precisely at midnight — counsel filed his response. 27 (Doc. 33.) 28 -4  1 In sum, counsel required four extensions of time — one of which was filed after 2 the deadline expired — and when he finally filed his response, it was still late. While 3 counsel may have had valid reasons for certain extensions, that cannot be said of all of 4 them. 5 6 7 IT IS THEREFORE ORDERED that Defendant’s Motion for Judgment on the Pleadings (Doc. 16) is DENIED. Dated this 5th day of April, 2012. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -5 

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