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Chavez v. Montes

United States District Court, W.D. Arkansas, Fayetteville Division

February 23, 2015

ZULEMA CHAVEZ, PLAINTIFF
v.
EDGAR MONTES; JALISCO GROUP, INC. d/b/a LA HUERTA; JOHN DOES 1-5; and ABC COMPANIES 1-5, DEFENDANTS

For Zulema Chavez, Plaintiff: Annie Smith, LEAD ATTORNEY, University of Arkansas School of Law, Fayetteville, AR.

For Edgar Montes, Jalisco Group, Inc., doing business as La Huerta, Defendants: Kerri E. Kobbeman, LEAD ATTORNEY, Conner & Winters, LLP, Fayetteville, AR.

Page 1092

OPINION AND ORDER

TIMOTHY L. BROOKS, UNITED STATES DISTRICT JUDGE.

Now pending before the Court are Defendants' Motion to Dismiss (Doc. 10) and brief in support (Doc. 11) and Plaintiff's Response (Doc. 16). A hearing on the Motion was held on February 20, 2014, and the Court DENIED the Motion from the bench. This Order seeks to clarify the Court's rulings on the Motion. To the extent anything in this Order differs from what was announced in open Court, this Order will control.

Defendants jointly sought dismissal of Plaintiff's Amended Complaint (Doc. 8) pursuant to Federal Rule of Civil Procedure 12(b)(1) or 12(b)(6), due to an alleged lack of federal jurisdiction. The Amended Complaint asserts that Plaintiff, a former server for Defendant La Huerta restaurant in Fayetteville, Arkansas, was denied minimum wages and overtime compensation by her employers in violation of the Fair Labor Standards Act (" FLSA" ), as codified at 29 U.S.C. § 201, et seq., and the Arkansas Minimum Wage Act, as codified at Ark. Code Ann. § 11-4-201, et seq. Plaintiff also makes claims for unjust enrichment and conversion due to Defendants' alleged misappropriation of her tips. She maintains that as a server, she had to rely solely on customers' tips and was never paid overtime despite regularly working over 60 hours per week.

Defendants argue that Plaintiff has failed to plead sufficient facts to show that she may properly bring an FLSA claim either based on her individual status as an employee, due to the nature of her job functions as described in § 207(a)(1) of the statute, or based Defendants qualifying as an " enterprise" covered by the statute as per § 203(s)(1)(A).

As an initial matter, the Court finds that the question of FLSA coverage is not a jurisdictional inquiry properly brought pursuant to Rule 12(b)(1), but is more appropriately characterized as a motion to dismiss pursuant to Rule 12(b)(6). Section 1331 of Title 28 provides that " [t]he district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." As Plaintiff's claims arise under federal law pursuant to the FLSA, the minimum threshold for jurisdictional purposes has been met for purposes of Rule 12(b)(1). Plaintiff has pleaded a colorable claim arising under the laws of the United States and therefore has invoked § 1331 jurisdiction. See Arbaugh v. Y& H Corp., 546 U.S. 500, 513, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006) (finding employee-numerosity requirement in Title VII case was not a jurisdictional prerequisite but an element of the claim); Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 160, 130 S.Ct. 1237, 176 L.Ed.2d 18 (2010) (explaining the distinction between jurisdictional conditions, which relate to a court's adjudicatory authority, and non-jurisdictional limitations on causes of action); Chao v. Hotel Oasis, Inc., 493 F.3d 26, 33 (1st Cir. 2007) (finding the dollar-restrictions explained in section 203(s)(1) of the FLSA

Page 1093

to be an element of the claim, not a jurisdictional requirement).

The Court will instead evaluate Defendants' Motion pursuant to Rule 12(b)(6), which requires that the Court accept as true all factual allegations set forth in the Amended Complaint and construe the pleadings in the light most favorable to Plaintiff, drawing all inferences in Plaintiff's favor. See Ashley County, Ark. v. Pfizer, Inc., 552 F.3d 659, 665 (8th Cir. 2009). A complaint " must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell A. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). " A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.

Here, the Court finds that Plaintiff pleaded sufficient facts regarding both individual and enterprise liability pursuant to the FLSA to survive dismissal. Moreover, the parties have not yet engaged in discovery, and questions as to the nature and extent of Defendants' involvement with interstate commerce or their annual gross volume of sales are known, at this point, only to Defendants. Detailed facts concerning the characterization of Plaintiff's role at La Huerta restaurant, her precise job description and daily duties, as well as her employers' expectations of her in comparison to other servers may be uncovered in the course of discovery. If Defendants find, after an adequate time period for discovery has passed, that they would like to renew the instant Motion as a motion for summary judgment pursuant to Rule 56, such may be appropriate. At this time, however, dismissal of the Amended Complaint would be premature.

Accordingly, IT IS ORDERED that Defendants' Motion to Dismiss (Doc. 10) is DENIED. A Case Management Order setting forth a trial date, and other deadlines will issue separately.

IT IS SO ORDERED.

CASE MANAGEMENT ORDER

A Case Management Hearing was conducted on February 20, 2015. After a review of the parties' Rule 26(f) Joint Report, and based on discussions with counsel during the hearing, and pursuant to Rule 16(b) of the Federal Rules of Civil Procedure, IT IS HEREBY ORDERED:

1. TRIAL SET DURING THE COURT'S APRIL 4, 2016 TRIAL TERM

The trial of this matter is scheduled for a JURY TRIAL in FAYETTEVILLE, ARKANSAS, at the call of the Court during a Two Week Trial Term which begins on APRIL 4, 2016, at 9:00 a.m. The case may be called up and tried at any point during the term; however, a more precise starting date will be set as the trial term approaches. If for some reason the case is " bumped" because the Court cannot accommodate all trials set for the term, then the case will be re-set and tried during the " back-up" trial date which is set for the week of MAY 16, 2016, at 9:00 a.m.

The case will be tried to an eight (8) person jury--unanimous verdict required. Counsel are directed to report to the fifth-floor Courtroom by no later than 8:30 a.m. on the first day of trial unless otherwise notified.

2. FINAL PRE-TRIAL CONFERENCE

A Final Pre-Trial Conference shall be conducted pursuant to the provisions of Rule 16(e) on MARCH 30, 2016, beginning at 9:00 a.m.

3. AMENDMENT OF PLEADINGS

Leave to amend pleadings and/or to add or substitute parties shall be sought no later than JUNE 26, 2015.

4. EXPERT DISCLOSURES

The deadline to provide expert witness disclosures and written reports pursuant to Rule 26(a)(2) is JUNE 26, 2015. The deadline to provide disclosures and reports of rebuttal experts ( i.e. whose testimony will be offered solely to contradict or rebut the expert opinions offered by an opposing expert) is JULY 31, 2015.

5. DISCOVERY

The discovery deadline is OCTOBER 23, 2015. The parties may conduct discovery beyond this date if all parties are in agreement to do so. To avoid later misunderstandings, such agreements should be reduced to a writing which describes the type, scope, and length of the extended period of discovery. That said, the Court will not resolve any disputes which may arise in the course of extended discovery.

All discovery requests must be propounded sufficiently in advance of the discovery deadline to allow for a timely response. Witnesses and exhibits not identified and produced in response to Rule 26(a)(1) Initial Disclosures, and/or in response to subsequent discovery requests, may not be used at trial except in extraordinary circumstances. The Court will not grant a continuance because a party does not have time in which to depose a lay or expert witness.

6. MOTIONS DEADLINES

The deadline to file dispositive motions is NOVEMBER 20, 2015.

If applicable, Daubert and related expert disqualification motions should be filed no later than NOVEMBER 20, 2015.

Discovery motions must be filed sufficiently in advance of the discovery deadline to allow for a proper response time under the rules. A discovery motion must be preceded by a substantive good faith effort to amicably resolve the dispute without court intervention, consistent with Local Rule 7.2(g). A discovery motion must explain these efforts in detail. A response to a discovery motion should be promptly filed.

Motions in limine must be filed on or before MARCH 16, 2016. Responses must be filed within seven (7) days thereafter. Motions submitted after the deadline may be denied solely on that ground.

7. MEMORANDUM BRIEFS

Memorandum briefs filed in support or in response to a motion must not exceed twenty-five (25) pages in length, without leave of court and for good cause shown. Reply briefs, when permitted, must not exceed seven (7) pages in length.

8. SETTLEMENT CONFERENCE

The parties are ordered to attend a Settlement Conference with Magistrate Judge Erin L. Setser by no later than FEBRUARY 5, 2016. The exact date will be set by separate order.

9. PRETRIAL DISCLOSURE SHEET

Pursuant to the provisions of Rule 26(a)(3), the parties shall simultaneously file Pretrial Disclosures on MARCH 2, 2016, in a form consistent with the outline contained in Local Rule 26.2.

10. DEPOSITIONS TO BE USED AT TRIAL PURSUANT TO RULE 32[1]

The proffering party must designate the pertinent portions of a deposition to be used as evidence at trial by MARCH 2, 2016. Notice of objections and/or counter-designations must be made by MARCH 9, 2016. These designations and objections should not be filed with the Court, but rather exchanged by the parties. The parties shall then confer in good faith to resolve any objections to designations.

Any unresolved objections shall be made by written motion filed no later than MARCH 16, 2016, with the opponent's response due MARCH 23, 2016. For each deposition, the moving party shall attach to its motion a deposition designation table--similar to the one attached to this order--clearly indicating which passages have been designated, by whom, and whether the passage is " agreed" or " objected" to, as well as the basis for any objection. A complete copy (condensed) of each such deposition shall be attached to the motion as well. Objections will be resolved during the Final Pre-Trial Conference.[2]

11. JURY INSTRUCTIONS

The parties must confer in advance regarding proposed jury instructions in an attempt to narrow areas of disagreement. An agreed set of proposed instructions (clearly marked " AGREED" ) shall be provided to the Court on or before MARCH 23, 2016. Proposed verdict forms should be submitted as well. Counsel should use model instructions whenever possible from the Eighth Circuit, AMI, or Federal Jury Practice and Instructions (5th Edition), as applicable, and should note the source and/or basis of the instruction at the end of each instruction.

If the parties cannot agree to a particular instruction(s), the party requesting a disputed instruction must submit it to the Court and to opposing counsel by the same date Agreed Instructions are due. Such instructions should be clearly marked as " [Plaintiff's/Defendant's] DISPUTED Instruction No. ." The legal basis for the instruction and brief description of the parties' disagreement shall be provided with the instruction (either in the space below the form of the instruction or attached on a separate page).

Agreed and disputed instructions/verdict forms should be submitted electronically in WordPerfect (preferred) or Word format to tlbinfo@arwd.uscourts.gov.

12. STATEMENT OF THE CASE

Each party must submit via email by MARCH 23, 2016 a concise non-argumentative statement/overview of the case, no more than one double spaced page in length, that it proposes the Court to read to the venire panel.

13. STIPULATIONS

The parties should stipulate in writing to the facts not in controversy and provide the same to the Court via email by no later than MARCH 23, 2016. Stipulations will be marked and received as a Court's exhibit for the record, and may be read/shown to the jury at an appropriate time(s) during the trial. The parties are encouraged to use stipulations as a means of narrowing and simplifying fact issues submitted to the jury.

14. WITNESS AND EXHIBIT LISTS

Each party shall submit witness and exhibit lists to the Court by no later than MARCH 23, 2016. The lists should be in the format as set forth on the attached forms. Witnesses shall be grouped together under headings indicating whether they " will be called" or merely " may be called" to testify.

Trial Exhibits must be identified, provided, and/or made available to opposing counsel in advance of the deadline. Counsel must then review and confer for the purpose of identifying any exhibits to which stipulations or objections are contemplated. The exhibit list provided to the Court should indicate--for each applicable exhibit--whether opposing counsel intends to stipulate or object to its introduction.

The Court would also ask each party to prepare a notebook of its proposed exhibits (indexed and tabbed) and provide the same to Chambers by no later than MARCH 30, 2016.

15. DEADLINES

The deadlines set forth above are firm. Extensions and/or continuances will not be considered absent very compelling circumstances.

16. SUMMARY TABLE AND FORMS

A table summarizing the deadlines is attached. In the event of a discrepancy between this Order and the summary table, the deadline set forth in the Order is controlling. The attached forms are available for download (in Word Perfect) on the Court's public website under " forms" tab (Judge Brooks' Forms).

17. COMMUNICATION WITH COURT REGARDING TRIAL OR SETTLEMENT

Settlements should be immediately reported to the Court.[3] Please communicate any late developing trial issues ( i.e. over the weekend prior to trial) to the Courtroom Deputy, Sheri Craig, at (479) 695-4460 or sheri_craig@arwd.uscourts.gov. If notice of settlement is received after 1:00 p.m. on APRIL 1, 2016, the parties will be assessed any costs associated with the Court's inability to timely recall the jury panel from reporting. The parties are further advised that the case will not be removed from the trial docket until an order of dismissal has been entered.

IT IS SO ORDERED

DATES AND DEADLINES

HEARINGS AND TRIAL DATE

FINAL PRE-TRIAL CONFERENCE

3/30/16

TRIAL DATE (Two Week Trial Term beginning on)

4/4/16

" BACK-UP" TRIAL DATE

5/16/16

DISCOVERY

AMEND PLEADINGS/ADD OR SUBSTITUTE PARTIES

6/26/15

EXPERT WITNESS DISCLOSURES/REPORTS

6/26/15

REBUTTAL EXPERT WITNESS DISCLOSURES/REPORTS

7/31/15

DISCOVERY DEADLINE

10/23/15

MOTIONS

DISPOSITIVE MOTIONS

11/20/15

DAUBERT AND RELATED MOTIONS REGARDING EXPERT OPINION

TESTIMONY (if applicable)

SETTLEMENT CONFERENCE

SETTLEMENT CONFERENCE (to be separately scheduled no later than)

2/5/16

FINAL TRIAL PREPARATIONS

PRETRIAL DISCLOSURES (per format of Local Rule 26.2)

3/2/16

MOTIONS IN LIMINE

3/16/16

DEPOSITION DESIGNATIONS (exchanged)

3/2/16

DEPOSITION COUNTER-DESIGNATIONS (exchanged)

3/9/16

OBJECTIONS TO DEPOSITION DESIGNATIONS

3/16/16

RESPONSES TO DEPOSITION DESIGNATIONS OBJECTIONS

3/23/16

JURY INSTRUCTIONS (submitted to the Court via email)

3/23/16

STATEMENT OF THE CASE (submitted to the Court via email)

3/23/16

STIPULATIONS (submitted to the Court via email)

3/23/16

WITNESS AND EXHIBIT LISTS (submitted to the Court via email)

3/23/16

EXHIBITS NOTEBOOK (INDEXED AND TABBED)

3/30/16

IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS DIVISION

PLAINTIFF(S)

V. CASE NO.

DEFENDANT(S)

WITNESS LIST FOR (PLAINTIFF/DEFENDANT)

No.

Witness Name

" Will" or

Live or

" May" Call

Deposition

IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS DIVISION

PLAINTIFF(S)

V. CASE NO.

DEFENDANT(S)

EXHIBIT LIST FOR (PLAINTIFF/DEFENDANT)

Pltf.

Deft.

Date

DESCRIPTION OF EXHIBITS

No.

No.

Offered[1]

Object.

Stip.

Recd[2]

IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS DIVISION

PLAINTIFF(S)

V. CASE NO.

DEFENDANT(S)

DEPOSITION DESIGNATIONS FOR (WITNESS)

FROM

TO

Designated by

Clip

Page

Line

Page

Line

OBJECTION

Plaintiff or

No.

YES/NO

BASIS FOR OBJECTION

Defendant


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