Vasquez v. Dan Keen Services Incorporated ( 2021 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Corey Vasquez, No. CV-21-00320-PHX-DLR 10 Plaintiff, ORDER 11 v. 12 Dan Keen Services Incorporated, et al., 13 Defendants. 14 15 16 Before the Court is Dan Keen Services, Inc’s, Daniel Keen’s, and Cleo Keen’s 17 (“Keen”) motion to dismiss Corey Vasquez’s first amended complaint (“FAC”), which is 18 fully briefed. (Docs. 38, 39, 40.) The Court will deny Keen’s motion for the following 19 reasons. 20 This case stems from alleged Fair Labor Standards Act (“FLSA”) overtime 21 violations committed by Keen. Mr. Vasquez’s FAC is a collective action complaint, which 22 alleges that Keen, a licensed contracting business, adopted a policy that paid him and its 23 other full-time non-exempt employees as W-2 employees for the first 40 hours worked in 24 a week and as 1099 independent contractors for those hours exceeding 40 to avoid paying 25 its workers time-and-a-half overtime. (Doc. 35.) On May 20, 2021, Keen filed its motion 26 to dismiss Mr. Vasquez’s FAC, which is now ripe. 27 Keen primarily seeks to dismiss the FAC by alleging that the case is moot because 28 Mr. Vasquez “was tendered all the monies he claimed to be due and owing for his wage 1 claim.” (Doc. 43 at 4.) Keen’s argument is misguided. On March 12, 2021, counsel for 2 Mr. Vasquez emailed counsel for Keen, expressing that Mr. Vasquez had given him 3 authority to make a settlement demand “in the amount of $1,919.75 to Plaintiff and 4 $5,678.40 in attorneys’ fees and costs for a total demand of $7,598.15.” (Doc. 38 at 11.) 5 Counsel for Keen responded by issuing a check to Mr. Vasquez in the amount of $1,919.76 6 but did not provide the additional $5,678.40. (Id. at 12.) Mr. Vasquez rejected the 7 counteroffer—as he was free to do—and filed the instant lawsuit. Contrary to its argument, 8 Keen’s unaccepted settlement offer has no preclusive effect, for “a claim becomes moot 9 when a plaintiff actually receives complete relief on that claim, not merely when that relief 10 is offered or tendered.” Chen v. Allstate Ins. Co., 819 F.3d 1136, 1138 (9th Cir. 2016) 11 (emphasis in original). 12 Next, Keen argues that Mr. Vasquez’s FAC is subject to dismissal because the 13 complaint lacks sufficient factual allegations in support, since Mr. Vasquez fails to set forth 14 all the exact dates and hours for which he was not adequately compensated. (Doc. 38 at 15 8.) To the contrary, Mr. Vasquez has fulfilled his Rule 8 pleading obligations. Landers v. 16 Quality Communications, Inc., 771 F.3d 638 (9th Cir. 2014) (“[W]e decline to make the 17 approximation of overtime hours the sine qua non of plausibility for claims brought under 18 the FLSA. After all, most (if not all) of the detailed information concerning a plaintiff- 19 employee’s compensation and schedule is in the control of the defendants.”) Particularly, 20 Mr. Vasquez has pled that his salary beginning in September 2019 was $15.50 per hour, 21 he routinely worked in excess of forty hours per week, Keen used different timecards to 22 record the first forty hours worked and those in excess of forty, and Keen did not 23 compensate Mr. Vasquez time-and-a-half for overtime hours. (Doc. 35 at 6-7.) Although 24 not required to do so, Mr. Vasquez even provides the hours and compensation from an 25 example workweek—June 6, 2020—to demonstrate the nature of Keen’s alleged overtime- 26 pay-avoidant scheme. Keen’s second argument lacks merit. 27 Keen also makes arguments regarding conditional class certification that have been 28 addressed in the Court’s May 26, 2021 order granting conditional class certification (Doc. || 42) and disputes Mr. Vasquez’s entitlement to attorneys’ fees prematurely. Finally, Keen 2|| attaches affidavits that attack Mr. Vasquez’s character and credibility, which are 3 || inappropriate and irrelevant on a motion to dismiss. Keen’s remaining arguments fail to 4|| demonstrate that Mr. Vasquez’s complaint fails to state a claim upon which relief can be granted. 6 IT IS ORDERED that Keen’s motion to dismiss (Doc. 38) is DENIED. 7 Dated this Ist day of June, 2021. 8 9 10 {Z, 11 _- {UO 12 Upited States Dictric Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3-