Hollis v. R & R Rests.

1

ZOE HOLLIS, individually and on behalf of all others similarly situated, Plaintiff, v. R & R RESTAURANTS, INC dba SASSY'S, an Oregon corporation; STACY MAYHOOD, an individual; IAN HANNIGAN, an individual; FRANK FAILLACE, an individual; and DOES 2 through 10, inclusive, Defendants.

No. 3:21-cv-00965-YY

United States District Court, D. Oregon, Portland Division

March 26, 2024

FINDINGS AND RECOMMENDATIONS

Youlee Yim You United States Magistrate Judge

FINDINGS

Plaintiff has brought suit against R & R Restaurants, Inc., the business entity that operates Sassy's, an adult entertainment club in Portland, Oregon, and individuals involved in managing Sassy's, including Stacy Mayhood Ian Hannigan, and Frank Faillace. Plaintiff alleges defendants misclassified performers who worked at the club as “independent contractors,” instead of employees to avoid paying minimum wage. First Am. Compl. ¶ 1, ECF 16. Plaintiff asserts a number of wage-related claims under the Fair Labor Standards Act (“FLSA”) against all defendants. Id. ¶¶ 99-131. Plaintiff also asserts retaliation claims under the FLSA and Oregon state law against defendant Faillace in connection with work that plaintiff did at a different adult entertainment venue in Portland that Faillace partly owns and operates. Id. ¶¶ 132-50.

Defendants have filed a motion for summary judgment, ECF 42, and a renewed motion for summary judgment, ECF 98. As explained below, plaintiff's FLSA wage-related claims are untimely because this suit was not commenced within the two-year statute of limitations for FLSA claims and plaintiff has not produced evidence that defendants' alleged FLSA violations were “willful,” which would expand the limitations period to three years. Plaintiff's FLSA retaliation claim against individual defendant Faillace was timely brought, but fails as a matter of law because the undisputed evidence shows that plaintiff was not an “employee” at the time of the alleged retaliation. The failure of plaintiff's federal claims leaves plaintiff's retaliation claims under Oregon law. Neither party has offered fully developed arguments about the propriety of these claims. Thus, there is no reason to exercise supplemental jurisdiction over plaintiff's remaining state law claims and those claims should be dismissed without prejudice.

I. Summary Judgment Standard

Under Federal Rule of Civil Procedure 56(a), “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” The party moving for summary judgment bears the initial responsibility of informing the court of the basis for the motion and identifying portions of the pleadings, depositions, answers to interrogatories, admissions, or affidavits that demonstrate the absence of a triable issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party does so, the nonmoving party must “go beyond the pleadings” and “designate ‘specific facts showing that there is a genuine issue for trial.' ” Id. at 324 (citing Fed.R.Civ.P. 56(e)). The court “does not weigh the evidence or determine the truth of the matter, but only determines whether there is a genuine issue for trial.” Balint v. Carson City, Nev., 180 F.3d 1047, 1054 (9th Cir. 1999). “Reasonable doubts as to the existence of material factual issue are resolved against the moving parties and inferences are drawn in the light most favorable to the non-moving party.” Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000).

II. Procedural Background-Plaintiff's Failure to Complete Discovery

When defendants initially filed their motion for summary judgment in June of 2022, plaintiff's primary argument was that the motion should be denied as premature or, at the very least, a decision on the motion should be deferred so that plaintiff could continue to conduct discovery. Opp. Mot. Summ. J. 1, ECF 45 (“Defendants stonewall plaintiff's ability to depose them and [sic] evidence, yet argue plaintiff cannot meet their^[1] burden of demonstrating the existence of disputed material facts. Plaintiff and their counsel have diligently pursued discovery in this matter, and plaintiff's inability to proffer evidence to support their opposition to defendants' motion is not because it does not exist, it is because defendants refuse to sit for examination under oath.”).^[2] Specifically, plaintiff stated that depositions of defendants and other witnesses were necessary to, among other things, “demonstrate that defendants' conduct in misclassifying [plaintiff]” and other entertainers who worked at the club “was willful and not in good faith.” Id. at 8.

The undersigned judge agreed that plaintiff should be given the opportunity to conduct depositions. As observed in the order holding defendants' motion for summary judgment in abeyance, the court had “previously stayed the deadline to complete fact discovery while resolving plaintiff[']s motion for conditional certification of the FLSA collective action.” Order (Nov. 21, 2022), ECF 81 (internal citations omitted). “The stay was lifted after the motion for conditional certification was granted in part on May 2, 2022.” Id. Just one month after the stay was lifted, defendants filed their motion for summary judgment. Id. The order holding the motion for summary judgment in abeyance was driven by the fact that discovery had been stayed while the court resolved the motion for conditional certification, and also by the attorneys' failure to communicate clearly with each other during conferrals regarding discovery issues and in the run-up to defendants' motion for summary judgment. Compare Opp. Mot. Summ. J. 6-8, ECF 45 with Reply 24-28, ECF 51. It appeared that the break-down in communication contributed to plaintiff's inability or failure to depose several individuals, and plaintiff's counsel represented that they could not effectively respond to defendants' motion for summary judgment without the opportunity to conduct those depositions. Opp. Mot. Summ. J. 1, ECF 45. Under all of these circumstances, some flexibility in finishing the depositions was warranted.^[3]

Defendants objected to the November 21, 2022 order holding the motion for summary judgment in abeyance, but Judge Simon overruled those objections and ordered that plaintiff's requested depositions “shall take place by March 6, 2023.” Order (Jan. 3, 2023), ECF 89. Judge Simon also set a March 20, 2023 deadline for plaintiff to submit a supplemental brief regarding defendants' motion for summary judgment. Id.

Inexplicably, however, the depositions did not occur by March 6, 2023. Nor did plaintiff submit any supplemental briefing on the motion for summary judgment by March 20, 2023, or file any motion for extension of time of those deadlines. Instead, after both deadlines passed, defendants filed a Renewed Motion for Summary Judgment on March 24, 2023. ECF 98. In it, defendants argued that plaintiff had missed both deadlines, that “[n]early two years has lapsed since Plaintiff commenced this action, and nearly one year since Defendants filed their motion for summary judgment,” and that plaintiff “has had a full and fair opportunity to develop their case and to take depositions.” Renewed Mot. Summ. J. 4, ECF 98. Defendants thus requested a decision on the merits of their motion for summary judgment. Id.

The court promptly set a status conference to discuss plaintiff's failure to meet the court-ordered deadlines for conducting the depositions and for filing a supplemental brief in opposition to defendants' motion for summary judgment. See ECF 100. As part of the scheduling order, the court ordered that plaintiff's local counsel was required to appear. Id. At the April 13, 2013 status conference, local counsel did not appear despite being ordered to do so.^[4] And plaintiff's pro hac vice counsel, who was new to the case, failed to provide any compelling explanation for the failure to meet the court's deadlines. Later that same day, plaintiff filed an Opposition to Defendants' Renewed Motion for Summary Judgment in which plaintiff again asked the court to defer any ruling on defendants' motion so that plaintiff can “make every effort possible to take the depositions of Defendants and essential individuals.” Opp. Renewed Mot. Summ. J. 6, ECF 103.

But the time to “make every effort possible” to take the requested depositions has passed and no further deferral is warranted. Plaintiff's counsel had ample opportunity to conduct the depositions and failed to do so; even with the benefit of a court-ordered deadline by which the depositions were to be completed, plaintiff's counsel apparently did not make any serious effort to obtain the testimony that they have repeatedly represented is so critical to their case. Further delaying the case would be prejudicial to defendants, who have been waiting now more than a year for their motion to be decided. At some point, the case simply must move on, notwithstanding plaintiff's counsel's failure to diligently conduct discovery. See Moersch v.Zahedi, 228 F.Supp.3d 1079, 1084 (C.D. Cal. 2017) (denying request for additional time to conduct discovery to respond to motion for summary judgment where the party did “not provide a single specific reason as to why [it] has not had time to procure any evidence despite his having ample time to do so-this case base been pending for almost a year”); Harris v. City of Seattle, 315 F.Supp.2d 1112, 1116 (W.D. Wash. 2004), aff'd, 152 Fed.Appx. 565 (9th Cir. 2005) (denying request for continuance of motion for summary judgment where party did not show “good cause why [it] has not pursued [the requested] discovery within the discovery period, which was over one year long”).

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