Alonzo v. Akal Security Incorporated

Filing 49

ORDER: IT IS ORDERED denying 36 Plaintiff's Motion to Amend the Complaint. (See attached Order). Signed by Judge John J Tuchi on 11/6/17.(JAMA) Modified on 11/7/2017 to add WO (JAMA).

Case 2:17-cv-00836-JJT Document 49 Filed 11/07/17 Page 1 of 6

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NOT FOR PUBLICATION

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Ed E. Alonzo,

No. CV-17-00836-PHX-JJT
Plaintiff,

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v.

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ORDER

Akal Security, Incorporated,

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Defendant.

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At issue is Plaintiff Ed E. Alonzo’s Motion to Amend (Doc. 36, MTA), to which

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Defendant Akal Security, Inc. filed a Response (Doc. 39, Resp.). For the reasons set forth

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below, the Court will deny Plaintiff’s Motion to Amend.

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I.

BACKGROUND

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Defendant employs Plaintiff as an Air Security Officer (“ASO”), a position

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responsible for the supervision of deportees during flights back to their home countries.

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On March 20, 2017, Plaintiff filed a Complaint alleging violations of several provisions

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of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., and one provision of

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the Arizona Minimum Wage Act (“AMWA”), A.R.S. § 23-363 et seq. (Doc.1, Compl.)

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Specifically, Plaintiff alleged that Defendant automatically deducts a one-hour lunch

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break from pay for each workday, regardless of whether Plaintiff does in fact take a lunch

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break. In doing so, Defendant allegedly violates the FLSA minimum wage (Count I) and

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overtime (Count II) provisions and the AMWA minimum wage provision (Count III).

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On May 12, 2017, Defendant filed a Partial Motion to Dismiss Counts I and III, or

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in the Alternative, Partial Motion for Summary Judgment on those counts. (Doc. 19.) On

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the same day, Defendant filed a Partial Answer and Affirmative Defenses with respect to

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Count II. (Doc. 20.) Plaintiff twice moved for an extension to file a Response to

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Defendant’s Motion and the Court granted both extensions. Plaintiff’s final Response was

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due June 19, 2017. Instead of filing a Response to Defendant’s Motion, Plaintiff filed an

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Amended Complaint on the due date. (Doc. 26.)

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The Court subsequently granted Defendant’s Motion on June 21, 2017, for two

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reasons. (Doc. 27.) First, Plaintiff failed to comply with Federal Rule of Civil Procedure

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15(a)(2), which requires that a party move to amend—as opposed to simply filing an

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amended complaint—if twenty-one days have elapsed since serving the original

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complaint. Second, Plaintiff never filed a Response to Defendant’s Motion. In its Order,

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the Court held that “filing a proposed Amended Complaint does not obviate the

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requirement to respond to a pending Motion.” (Doc. 27 at 2.) Because the Plaintiff filed

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no substantive Response to Defendant’s Motion, the Court granted summary disposition

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in accordance with Local Rule 7.2(i).

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On August 4, 2017, Plaintiff filed a Motion to Amend in accordance with the

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Court’s Amended Rule 16 Scheduling Order. (Doc. 33.) Defendant then filed a Response

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on September 1, 2017. (Doc. 39.) In the Response, Defendant argues that any amendment

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to the Complaint would be futile. Plaintiff did not file a Reply.

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II.

LEGAL STANDARD

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A party may amend a pleading once as a matter of course within 21 days after

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serving it, or within 21 days of service of, inter alia, a Rule 12(b)(6) motion. Fed. R. Civ.

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P. 15(a). In all other circumstances, absent the opposing party’s written consent, a party

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must seek leave to amend from the court. Fed. R. Civ. P. 15(a)(2). Although the decision

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to grant or deny a motion to amend is within the trial court's discretion, “Rule 15(a)

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declares that leave to amend shall be freely given when justice so requires.” Foman v.

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Davis, 371 U.S. 178, 182 (1962) (citation and internal quotation marks omitted). “In
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exercising its discretion with regard to the amendment of pleadings, a court must be

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guided by the underlying purpose of Rule 15—to facilitate a decision on the merits rather

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than on the pleadings or technicalities.” Eldridge v. Block, 832 F.2d 1132, 1135 (9th Cir.

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1987) (citation and internal quotation marks omitted).

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However, the policy in favor of allowing amendments is subject to limitations.

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After a defendant files a responsive pleading, leave to amend is not appropriate if the

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“amendment would cause prejudice to the opposing party, is sought in bad faith, is futile,

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or creates undue delay.” Madeja v. Olympic Packers, 310 F.3d 628, 636 (9th Cir. 2002)

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(citation and internal quotation marks omitted). “Futility alone can justify the denial of a

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motion for leave to amend.” Nunes v. Ashcroft, 375 F.3d 805, 808 (9th Cir. 2003).

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“A proposed amended complaint is futile if it would be immediately subject to

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dismissal. Thus, the proper test to be applied when determining the legal sufficiency of a

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proposed amendment is identical to the one used when considering the sufficiency of a

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pleading challenged under Rule 12(b)(6).” Nordyke v. King, 644 F.3d 776, 788 n.12 (9th

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Cir. 2011) (quotations and citations omitted), aff’d on reh’g en banc on other grounds,

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681 F.3d 1041 (9th Cir. 2012). To survive a Rule 12(b)(6) motion, a complaint must

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allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic

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Corp. v. Twombly, 550 U.S. 544, 570 (2007). A dismissal for failure to state a claim can

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be based on either (1) the lack of a cognizable legal theory or (2) insufficient facts to

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support a cognizable legal claim. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699

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(9th Cir. 1990).

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III.

ANALYSIS

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In the Proposed Amended Complaint (Doc. 36-1), Plaintiff added allegations with

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regard to Counts I and III, the minimum wage claims. In the Motion to Amend, Plaintiff

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contends that he stated minimum wage claims even without the new allegations but

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added them “to avoid future motion practice.” (MTA ¶ 1.)

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In the Response, Defendant incorporates the same substantive arguments from its

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Partial Motion to Dismiss Counts I and III, or in the Alternative, Partial Motion for
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Summary Judgment on those counts. Namely, if Plaintiff averaged out his hourly wage

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over the course of the workweek, including the zero dollars received for the hour-lunch

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break, Plaintiff would still be making well above minimum wage on average. (Resp. at 2–

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6.) Defendant argues therefore that not only has Plaintiff failed to state a claim, but no

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amendment could cure this defect because any calculation of Plaintiff’s average hourly

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wage over the course of a workweek would yield a dollar amount more than the

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minimum wage. (Resp. at 2–6.) For his part, Plaintiff states that minimum wage laws

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require compensation for each particular hour worked, as opposed to an average hourly

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rate over the course of the workweek. (MTA ¶ 8 & n.1.)

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The entirety of Plaintiff’s substantive argument in favor of granting the Motion to

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Amend is as follows: “The text of the FLSA clearly supports Plaintiff’s claim as

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recognized by every court that has conducted a detailed analysis of the issue.” (MTA

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¶ 6.) In support of this, Plaintiff referred the Court to two then-pending Ninth Circuit

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Court of Appeals cases. Plaintiff provided no factual information about either case or any

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argument as to how either case is similar to or distinguishable from the case at bar. As

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such, the Court had to conduct its own review of the relevant facts and arguments in each

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case.

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The Court agrees with Defendant that Sheehan is factually and legally

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distinguishable from this case. Sheehan v. Romulus, Inc., No. 14-cv-00464-SMM (D.

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Ariz. Mar. 31, 2015), vacated sub nom. Marsh v. Alexander’s LLC, 869 F.3d 1108 (9th

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Cir. 2017). In Marsh, the Ninth Circuit rejected plaintiffs’ request to adopt a particular

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Department of Labor interpretation of what constitutes “dual jobs” for tip credit purposes

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within the FLSA. Marsh, 869 F.3d at 1126. Marsh does not clarify whether FLSA

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minimum wage requirements are based on a workweek average or on a per-hour basis.

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Even if it did so within the context of dual jobs, Plaintiff does not allege—or even

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suggest—that he performs dual jobs in his ASO position, and does not allege that he is

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tipped for any part of his duties.

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Although the issue pending in front of the Ninth Circuit in Douglas v. Xerox may

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be akin to that in the case at bar, Plaintiff’s Motion to Amend is futile under current Ninth

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Circuit precedent. Adair v. City of Kirkland, 185 F.3d 1055, 1063 (9th Cir. 1999) (“[T]he

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district court properly rejected any minimum wage claim the officers might have brought

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by finding that their salary, when averaged across their total time worked, still paid them

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above minimum wage.”). This District’s interpretation of the FLSA minimum wage

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provision is consistent with Adair. See, e.g., Kirchgessner v. CHLN, Inc., 174 F. Supp. 3d

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1121, 1125 (D. Ariz. 2016) (“[A]n employer’s failure to compensate an employee for

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particular hours worked does not necessarily violate the minimum wage provision. That

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is because the workweek as a whole, not each individual hour within the workweek,

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determines whether an employer has complied with [FLSA minimum wage

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provisions].”). Because Plaintiff’s hourly wages averaged over the workweek are well

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above the minimum wage, Count I fails to state a claim for which relief can be granted.

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For the same reasons, Count III fails to state a claim. Arizona state regulations

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specifically state that, for minimum wage purposes, an employee’s hourly wage is

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determined by the workweek. Ariz. Admin. Code § R20-5-1206(C) (2017).

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The Court also notes that, as recounted above, the Court dismissed Counts I and

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III of the Complaint in part because Plaintiff did not respond to Defendant’s Partial

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Motion to Dismiss. Pursuant to Local Rule 7.1(i), the Court may construe a failure to

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respond to a motion as consent to grant that motion summarily. See Wystrach v.

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Ciachurski, 267 F. App’x 606, 607–08 (2008) (upholding this District Court’s granting of

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defendant’s motion to dismiss on the basis that plaintiffs failed to timely respond). Here,

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Defendant’s Response to the Motion to Amend functioned as a Rule 12(b)(6) motion, and

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Plaintiff again failed to meet Defendant’s arguments by filing a Reply. The Court

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admonishes Plaintiff that, as the case moves forward, a party must meet all of the

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opposing party’s arguments or risk having summary disposition entered for the opposing

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party.

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IV.

CONCLUSION

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Counts I and III of Plaintiff’s Proposed Amended Complaint fail to state a claim

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for which relief can be granted under the minimum wage provisions of the FLSA or

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AMWA. Any further amendment would be futile at this time.

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IT IS THEREFORE ORDERED denying Plaintiff’s Motion to Amend the
Complaint (Doc. 36).
Dated this 6th day of November, 2017.

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Honorable John J. Tuchi
United States District Judge

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