Zuniga v. Fiesta Pediatric Therapy Incorporated et al

Filing 65

ORDER denying 58 Counterdefendants' Motion to Dismiss Counts/Claims and denying as moot 64 Counterdefendants' Motion to Strike. Signed by Magistrate Judge David K Duncan on 9/16/16. (DXD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Joanne Zuniga and David M. Reaves,

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Plaintiffs,

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v.

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No. CV-15-1978-PHX-DKD

Fiesta Pediatric Therapy Incorporated, Beth
Williamson, and Randy Williamson,

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ORDER

Defendants.

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Counterdefendant/Plaintiff

(“Zuniga”)

has

moved

to

dismiss

the

three

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counterclaims brought by Counterclaimants/Defendants (“Fiesta”). (Docs. 56, 58) The

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counterclaims are: 1) violating the Computer Fraud and Abuse Act (“CFAA”), 2) breach

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of the duty of loyalty, and 3) misappropriation. (Doc. 56 at 13-14)

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consented to Magistrate Judge jurisdiction pursuant to 28 U.S.C. § 636(c). (Doc. 8)

The parties have

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The parties do not dispute that all of the claims in the Amended Complaint and the

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Amended Counterclaim stem from Zuniga’s employment by Fiesta and her actions

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involving Fiesta’s information after she separated from employment. (Docs. 14, 56) The

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dispute is whether this is sufficient to establish the Court’s jurisdiction over the

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counterclaims.1 On its face, the employment relationship between Zuniga and Fiesta

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provides a sufficiently common nucleus of operative fact to support the Court’s

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jurisdiction over the counterclaims. Notably, neither of the parties has explained why or

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Both sides cite and distinguish cases that analyze jurisdiction but none of them
are binding precedent. (Docs. 58, 61, 63) The only precedential cases cited by either
party involved facts that are so divergent to this case as to be practically irrelevant.

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how they will be prejudiced by proceeding with all claims together. Zuniga advances

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possible Congressional interests; such as those cited in Gagnon v. United Technisource,

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Inc., 607 F.3d 1036, 104 (5th Cir. 2010), and Brennan v. Heard, 491 F.2d 1, 4 (5th

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Cir.1974), rev'd on other grounds, McLaughlin v. Richland Shoe Co., 486 U.S. 128, 108

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S.Ct. 1677, 100 L.Ed.2d 115 (1988). To be sure the Fifth Circuit has such a body of case

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law that disfavors the “clutter[ing]” of FLSA cases “with the minutiae of other employer-

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employee relationships [that] would be antithetical to the purpose of the Act”, Brennan at

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p. 4., but the Ninth Circuit does not.

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Zuniga refers in passing to additional discovery from the Counterclaims but does

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not provide any additional explanation to support this argument. (Doc. 58 at 3) Instead,

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it appears that these claims involve the same witnesses and the same, or similar,

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documents. Zuniga further argues for dismissal because the claims in the Complaint will

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be decided in a jury trial and the Counterclaim will be decided in a bench trial. (Doc. 58

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at 3, Doc. 63 at 5) Wise case and trial management can forestall any problems of this

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nature. Accordingly, jurisdiction over the Amended Counterclaim is appropriate as a

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prudent exercise of the Court’s original jurisdiction over the CFAA claim and a prudent

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exercise of its discretionary supplemental jurisdiction over the other two, state law

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counterclaims.

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Zuniga also attempts to argue the merits of the CFAA claim. (Doc. 58 at 8-10)

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This attempt—unsupported by anything beyond counsel’s allegations—is unavailing.

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Zuniga also raises arguments and seeks alternative forms of relief for the first time in the

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reply which the Court will not entertain. Eberle v. City of Anaheim, 901 F.2d 814, 818

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(9th Cir. 1990) (the Court will not consider a new issue raised for the first time in a reply

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brief).

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Defendants’ Motion to Strike (Doc. 64) as moot.)

(Because the Court will not consider these extraneous issues it will deny

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Finally, the Court notes one of the only areas where the parties agree is that the

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lawyers’ fees in this matter outweigh Zuniga’s damages claim by a ratio of approximately

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10-to-1. (Doc. 63 at 17) The parties are reminded of the availability of the Court’s

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settlement conference process and further reminded that the Arizona State Bar expects

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lawyers to act honorably not zealously. Ariz. St. Supreme Ct. R. 42 Preamble at [9]. See

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also Safeway Ins. Co., Inc. v. Guerrero, 83 P.3d 560, 572, n. 10 (Ariz. App. 2004),

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overturned on other irrelevant grounds.

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In order to facilitate a professional, courteous, and civil tenor for the remainder of

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this case, the Court is inclined to make itself available to telephonically attend all future

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depositions. Accordingly, the Court must be timely informed of all depositions and any

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change to the docketed Notices of Deposition; the docket currently shows a deposition

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scheduled for September 22, 2016, at 9:00 am at the Jaburg &Wilk offices. (Doc. 59)

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The Court will make every effort to keep its calendar flexible during the times noticed for

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depositions so that it can be available if necessary. Also, given the tenor of some of

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counsels’ correspondence, the Court gives this notice that it may in the future require that

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it be copied on all non-Rule 408 written and email correspondence between counsel

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related to this case.

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IT IS THEREFORE ORDERED denying Counterdefendants’ Motion to
Dismiss All Counterclaims. (Doc. 58)
IT IS FURTHER ORDERED that counsel keep the Court informed of the
current deposition schedule.
IT IS FURTHER ORDERED denying Counterdefendants’ Motion to Strike as
Moot. (Doc 64)
Dated this 16th day of September, 2016.

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