Smith v. Nov. Bar N Grill LLC, No. CV-18-00490-TUC-RM (MSA)

441 F.Supp.3d 830

Crystal SMITH, Plaintiff,

v.NOVEMBER BAR N GRILL LLC, et al., Defendants.

No. CV-18-00490-TUC-RM (MSA)

United States District Court, D. Arizona.

Signed February 24, 2020

Filed February 25, 2020

ORDER

Honorable Rosemary Márquez, United States District Judge

On December 26, 2019, Magistrate Judge Maria S. Aguilera issued a Report and Recommendation (Doc. 99) recommending that this Court deny Plaintiff's Motion for Summary Judgment (Doc. 82), partially grant Defendants' Motion for Summary Judgment (Doc. 84) to the extent Defendants challenge Plaintiff's claims under the Fair Labor Standards Act (Counts One and Two of the Amended Complaint (Doc. 37)), and decline supplemental jurisdiction over Plaintiff's claims under the Arizona Minimum Wage Act and Arizona Wage Act (Counts Three and Four). No objections to the Report and Recommendation were filed.

A district judge must "make a de novo determination of those portions" of a magistrate judge's "report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). The advisory committee's notes to Rule 72(b) of the Federal Rules of Civil Procedure state that, "[w]hen no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation" of a magistrate judge. Fed. R. Civ. P. 72(b) advisory committee's note to 1983 addition. See also Johnson v. Zema Sys. Corp. , 170 F.3d 734, 739 (7th Cir. 1999) ("If no objection or only partial objection is made, the district court judge reviews those unobjected portions for clear error."); Prior v. Ryan , CV 10-225-TUC-RCC, 2012 WL 1344286, at *1 (D. Ariz. Apr. 18, 2012) (reviewing for clear error unobjected-to portions of Report and Recommendation).

The Court has reviewed the Report and Recommendation, the parties' briefs, and the record. The Court finds no error in the Report and Recommendation. Accordingly, the Court will adopt the Report and Recommendation in full.

IT IS ORDERED that the Report and Recommendation (Doc. 99) is accepted and adopted in full .

IT IS FURTHER ORDERED that:

(1) Plaintiff's Motion for Summary Judgment (Doc. 82) is denied .

(2) Defendants' Motion for Summary Judgment (Doc. 84) is granted as to Plaintiff's claims under the Fair Labor Standards Act. Plaintiff's claims under the Fair Labor Standards Act are dismissed with prejudice .

(3) The Court declines to exercise supplemental jurisdiction over Plaintiff's claims under the Arizona Minimum Wage Act and the Arizona Wage Act. Plaintiff's claims under the Arizona Minimum Wage Act and the Arizona Wage Act are dismissed without prejudice .

(4) The Clerk of Court is directed to enter judgment accordingly and close this case.

REPORT AND RECOMMENDATION

Honorable Maria S. Aguilera, United States Magistrate Judge

This matter is on referral pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure. Pending before the Court are the parties' motions for summary judgment. (Docs. 82, 84.) For the following reasons, the Court will recommend that summary judgment be granted in favor of Defendants November Bar N Grill LLC ("November Bar"), Rosalinda Largent, and Mary Sagaya on Plaintiff Crystal Smith's federal-law claims, and that supplemental jurisdiction be declined over Plaintiff's state-law claims.

Background¹

November Bar is owned by Rosalinda Largent and operated by Mary Sagaya. (Doc. 90, ¶ 2.) It is licensed to provide adult entertainment. (Id. ¶ 1.) The parties dispute the volume of business done by November Bar: Defendants assert that November Bar's annual gross revenue is regularly less than $40,000 and that the bar closes early on most nights due to a lack of customers. (Doc. 88 at 7, ¶¶ 52, 54, 56.) Plaintiff Crystal Smith asserts that Defendants' evidence of November Bar's revenue is inaccurate because November Bar is a cash-only business, and Defendants did not track the fees paid to them by individual dancers. (Doc. 91, ¶¶ 1, 3, 8.)

Plaintiff performed as an exotic dancer at November Bar starting in April 2016. (Doc. 90, ¶¶ 1, 8.) The parties dispute how often Plaintiff worked: Plaintiff asserts she worked six days per week for nearly two-and-a-half years, while Defendants assert she worked only sporadically and would disappear for months at a time. (Doc. 88 at 10, ¶¶ 89–90; Doc. 90, ¶¶ 16–17.) The parties' arrangement ended in August 2018, when Plaintiff was told to leave the bar. (Doc. 90, ¶ 11.)

While working at November Bar, Plaintiff solicited customers to pay for her dancing performances. (Id. ¶ 10.) The songs Plaintiff danced to at November Bar came from a jukebox. (Id. ¶ 18.) The parties dispute whether the jukebox uses the internet to play music: Plaintiff asserts that the jukebox is "internet-streaming," while Defendants assert that it is not. (Doc. 83, ¶ 32; Doc. 88 at 5, ¶ 32.) The parties also dispute whether Defendants imposed rules on their dancers: Defendants assert they have no rules for dancers other than that dancers follow the law. (Doc. 88 at 9, ¶ 81.) Plaintiff asserts that dancers are required to pay house fees, work four- to five-hour shifts at least three days per week, pay late fees for tardiness, and perform dances only in specific locations of the bar. (Doc. 83, ¶¶ 1, 5–6, 8, 11.)

Legal Standard

Summary judgment is proper "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." Fed. R. Civ. P. 56(a). A fact is material if it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A factual dispute is genuine if the evidence is such that a reasonable trier of fact could resolve the dispute in favor of the nonmoving party. Id. In evaluating a motion for summary judgment, the court must "draw all reasonable inferences from the evidence" in favor of the nonmovant. O'Connor v. Boeing N. Am., Inc. , 311 F.3d 1139, 1150 (9th Cir. 2002). A reasonable inference is one which is supported by "significant probative evidence" rather than "threadbare conclusory statements." Barnes v. Arden Mayfair, Inc. , 759 F.2d 676, 680–81 (9th Cir. 1985). If "the evidence yields conflicting inferences [regarding material facts], summary judgment is improper, and the action must proceed to trial." O'Connor , 311 F.3d at 1150.

The party moving for summary judgment bears the initial burden of identifying those portions of the record, together with affidavits, if any, that it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the movant meets this burden, the burden shifts to the nonmovant to "come forward with specific facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (emphasis omitted); see also Fed. R. Civ. P. 56(c)(1).

Discussion²

Plaintiff has alleged four claims against Defendants. In count one and count two, she claims that Defendants violated the Fair Labor Standards Act ("FLSA") by not paying overtime wages and minimum wage. 29 U.S.C. §§ 206(a), 207(a). In count three, she claims that Defendants violated the Arizona Minimum Wage Act ("AMWA") by not paying minimum wage. Ariz. Rev. Stat. § 23-363(A). In count four, she claims that Defendants violated the Arizona Wage Act ("AWA") by not timely paying all wages due. Id. § 23-351(C).

I. Fair Labor Standards Act

To establish a minimum-wage or overtime violation of the FLSA, Plaintiff must establish three elements: (1) she was an employee of Defendants, (2) she was covered under the FLSA, and (3) Defendants failed to pay her minimum wage or overtime wages. 29 U.S.C. §§ 206(a), 207(a).³ There are two types of coverage under the FLSA: individual and enterprise. Chao v. A-One Med. Servs., Inc. , 346 F.3d 908, 914 (9th Cir. 2003). Defendants contend they are entitled to summary judgment because Plaintiff is unable to establish either type of coverage. The Court agrees.

A. Individual Coverage

An employee has individual coverage if, during her work, she "is engaged in commerce." 29 U.S.C. § 206(a).⁴ The FLSA defines "commerce" to mean "trade, commerce, transportation, transmission, or communication among the several States or between any State and any place outside thereof." Id. § 203(b). In determining whether an employee is engaged in commerce, the court must "focus on the activities of the employee[ ] and not on the business of the employer." Mitchell v. Lublin, McGaughy & Assocs. , 358 U.S. 207, 211, 79 S.Ct. 260, 3 L.Ed.2d 243 (1959) (citations omitted). This fact-dependent inquiry is "guided by practical considerations, not technical conceptions." Mateo v. Auto Rental Co. , 240 F.2d 831, 833 (9th Cir. 1957) (citing Mitchell v. C.W. Vollmer & Co. , 349 U.S. 427, 429, 75 S.Ct. 860, 99 L.Ed. 1196 (1955) ).

Defendants argue that interstate commerce is in no way implicated by Plaintiff's work as an exotic dancer. They acknowledge that Plaintiff has asserted she was required to dance to streaming music to perform her work, but they contend this assertion is without factual support. They contend further that although their jukebox is capable of downloading music, there is no evidence that Plaintiff ever downloaded a song or that she was required to do so for her work. By "pointing out through argument the absence of evidence to support plaintiff's claim," Defendants have met their initial burden to "show that the nonmoving party does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial." Fairbank v. Wunderman Cato Johnson , 212 F.3d 528, 532 (9th Cir. 2000) ; Nissan Fire & Marine Ins. Co. v. Fritz Cos. , 210 F.3d 1099, 1102 (9th Cir. 2000). Therefore, the burden is Plaintiff's "to produce enough evidence to create a genuine issue of...