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