Ellis v. DotNext Inc. et al

Filing 43

ORDER by Magistrate Judge Bernard Zimmerman denying 7 Motion to Dismiss (bzsec, COURT STAFF) (Filed on 7/22/2010)

Ellis v. DotNext Inc. et al

Doc. 43

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 ) ) ) ) Plaintiff(s), ) ) v. ) ) ) DOTNEXT INC.; LEAPFISH INC.;) BEHNAM BEHROUZI; RUSSELL ) SAFAR; DOES 1-10 inclusive, ) ) ) Defendant(s). ) ) MAXINE ELLIS, UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

No. C10-1599

BZ

ORDER DENYING DEFENDANT SAFAR'S MOTION TO DISMISS

Before the Court is defendant Safar's motion to dismiss the fourth and seventh causes of action of plaintiff's complaint. Plaintiff concedes that the complaint is

inadequate and requests leave to file an amended complaint which more specifically addresses Safar's status as her employer. Safar opposes granting leave on the grounds that it For the following reasons, defendant's

would be futile. motion is DENIED.

Under the FLSA, "employer" is defined to include "any 1
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person acting directly or indirectly in the interest of an employer in relation to an employee...." 29 U.S.C. § 203(d). "The definition of `employer' under the FLSA is not limited by the common law concept of `employer,' and is to be given an expansive interpretation in order to effectuate the FLSA's broad remedial purposes." Bonnette v. California Health & The

Welfare Agency, 704 F.2d 1465, 1469 (9th Cir. 1983).

Ninth Circuit uses a four factor test to determine if an individual qualifies as an employer under the FLSA: "whether the alleged employer (1) had the power to hire and fire the employees, (2) supervised and controlled employee work schedules or conditions of employment, (3) determined the rate and method of payment, and (4) maintained employment records." Gilbreath v. Cutter Biological, Inc., 931 F.2d 1320, 1324 (9th Cir. 1991). Courts also consider ownership interest in making Boucher v. Shaw, 572 F.3d 1087, 1091-92

the determination. (9th Cir. 2009).

The determination of whether an employer-employee relationship exists does not depend on `isolated factors but rather upon the circumstances of the whole activity.' Rutherford Food Corp. v. McComb, 331 U.S. 722, 730(1947). The touchstone is the "economic reality" of the relationship. Goldberg v. Whitaker House Coop., Inc., 366 U.S. 28, 33 (1961). Id. at 1091. In Lambert v. Ackerly the Court held that

individual managers may in certain circumstances be held liable under the FLSA as employers. 1999). 180 F.3d 997 (9th Cir.

That holding was reaffirmed in Boucher, although the

individual defendants in Boucher did not contest whether they could be held liable. Despite Safar's factual disagreement with plaintiff's 2

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proposed amended allegations, I cannot find as a matter of law that plaintiff's amendment would be futile. Plaintiff alleges

that Safar participated in decisions regarding plaintiff's pay, schedule, discipline, and termination. Opp. p. 2. Such

allegations are somewhat similar to those found sufficient in Lambert and Boucher. Further, there is significant case law

which supports imposition of individual liability under the FLSA in a variety of circumstances. See e.g. cases collected

in Solis v. Universal Project Management, Inc., 2009 WL 4043362, 4-6 (S.D.Tex. 2009). The Court is mindful that defendant Safar vigorously disagrees with plaintiff's factual allegations contained in her proposed amended complaint. Such factual disagreements

are better addressed in a motion for summary judgment rather than in a motion to dismiss. DENIED. Safar's motion to dismiss is

Plaintiff shall file a single amended complaint which

incorporates the supplemental complaint (Doc. No. 33) by JULY 30, 2010. 2010. Dated: July 22, 2010 Bernard Zimmerman United States Magistrate Judge
G:\BZALL\-BZCASES\ELLIS V. DOXNEXT\ORD DENYING MOT TO DISMISSBZ.wpd

Defendant Safar shall answer by AUGUST 20,

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