Marlow v. New Food Guy, Inc., The

Filing 43

ORDER granting 31 Motion for Judgment on the Pleadings; granting 31 Motion for Summary Judgment by Judge John L. Kane on 02/17/2016.(cthom, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-01327
BRIDGETTE MARLOW, on behalf of herself and all similarly situated persons,
Plaintiff,
v.
THE NEW FOOD GUY, INC., and
BRETT TUCKER,
Defendants.
______________________________________________________________________________
ORDER ON DEFENDANTS’ MOTION FOR JUDGMENT ON THE PLEADINGS
______________________________________________________________________________
Kane, J.
Plaintiff filed a complaint and then an amended complaint bringing claims of her own
and on behalf of others similarly situated as a collective action under Sec. 216(b) of the Fair
Labor Standards Act (FLSA) and a F.R.Civ.P. 23 class action for the remaining three claims
under the Colorado Wage Claim Act and a common law breach of contract claim. In her
response to Defendants’ motions, Plaintiff withdrew the breach of contract claim and no longer
requests the exercise of jurisdiction on the state statutory claims as supplemental to the FLSA
claim. Because I am granting the Defendants’ Motion For Judgment on the Pleadings (Doc. 31),
I need not rule on the alternative Motion for Summary Judgment. Further, the three
supplemental claims are no longer pending because they have been withdrawn and no prejudice
attaches to them. This civil action is therefore dismissed.
The following facts are undisputed: 1. The New Food Guy, Inc. operates a catering
business in Lakewood, Colorado under the name Relish Catering (hereafter referred to only as
Relish or Relish Catering) and Brett Tucker is one of its owners. 2. Bridgette Marlow worked

part-time for Relish for three months in 2013 and for six months in 2014. 3. Throughout her
employment Relish paid Marlow a regular hourly wage of $12.00 per hour and an overtime rate
of time and one-half or, more precisely stated, $18.00 per hour.
A Motion for Judgment on the Pleadings applies to cases where material facts are not in
dispute and judgment on the merits can be rendered based on the content of the pleadings.
Courts are also authorized to take judicial notice of other facts, but that provision has no
application to this order. The nearly ubiquitous rule of pleading applies that all well-pleaded
material allegations of the opposing party’s pleadings are taken as true, and all of the moving
party’s allegations denied by the opposing party are taken as false. Judgment on the Pleadings
may enter only if, on the facts so undisputed, the moving party is clearly entitled to judgment. In
other words, the same standards apply to the instant motion as apply in motions to dismiss
pursuant to F.R. Civ. P. 12(b)(6). Conclusory allegations and claims facially implausible are
neither accepted nor considered.
Section 6(a) of the FLSA states the general rule that employers must pay employees at
least the full minimum wage. Section 3(m) furnishes an exception to that rule in authorizing an
employer to take a tip credit against the minimum wage under certain circumstances and thereby
pay less in direct wages than the minimum wage. Such has never happened in this case under
any circumstance. On the contrary, the Plaintiff was paid more than the minimum wage without
regard to any tips. This amount exceeds the federal minimum wage and satisfies Section
203(m). Though the Colorado minimum wage of $8.00 per hour is no longer at issue because
the claim has been withdrawn, the same thing occurs: Plaintiff was paid $12.00 per hour. Thus,
the requirements of the FLSA are satisfied. Under the Act, there is no free-standing right to lost

“tip” wages. Only if the employer applies the sum of tips as a credit against the minimum wage
can a statutory claim under Section203(m) be permitted.
The purpose of the FLSA is to protect wage earners from being paid below a fixed
minimum and from oppressive working hours. When an employer pays well above the
minimum wage and time and one-half for overtime without deducting or “crediting” wages for
tips received, no violation occurs. Therefore, the Motion for Judgment on the Pleadings (Doc.
31) is GRANTED. Judgment of dismissal shall enter. Each party to pay its own costs.

Dated: February 17, 2016

s/ John L. Kane
Senior U.S. District Judge