Kenneth Willis v. Driltek, Inc. ( 2019 )

FILED
NOT FOR PUBLICATION
APR 10 2019
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KENNETH WILLIS, No. 17-17397
Plaintiff-Appellant, D.C. No. 1:15-cv-00688-JLT
v.
MEMORANDUM*
DRILTEK, INC.,
Defendant-Appellee.
KENNETH WILLIS, No. 17-17472
Plaintiff-Appellant, D.C. No. 1:15-cv-00688-JLT
v.
ENTERPRISE DRILLING FLUIDS,
INC.; DRILTEK, INC.; JAMES JOSLYN,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Jennifer L. Thurston, Magistrate Judge, Presiding
Argued and Submitted February 15, 2019
San Francisco, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: SCHROEDER and RAWLINSON, Circuit Judges, and LASNIK,**
District Judge.
Plaintiff Kenneth Willis appeals the district court’s order granting summary
judgment in favor of DrilTek, Inc. in Willis’ putative class action claiming
violations of state and federal wage and hour laws. We have jurisdiction of the
appeal. The order granting summary judgment was appealable because there was
nothing left for the district court to do. See Klestadt & Winters, LLP v. Cangelosi,
672 F.3d 809, 813 (9th Cir. 2012); see also Cohen v. Beneficial Indus. Loan Corp.,
337 U.S. 541, 546 (1949).
Willis is seeking to recover overtime pay from DrilTek on the theory that
DrilTek was a joint employer with Enterprise, the company that hired him. The
district court correctly rejected that theory. At most, DrilTek criticized work done
by one or two of Enterprise’s engineers. Because DrilTek was the subcontractor in
charge of overseeing operations, it scheduled work to be done by Enterprise’s
employees. DrilTek did not hire, fire, or control the wages and hours and working
conditions of Willis and other engineers employed by Enterprise. DrilTek
therefore did not exercise the requisite degree of control required by federal or
**
The Honorable Robert S. Lasnik, United States District Judge for the
Western District of Washington, sitting by designation.
2
California law to make DrilTek an employer. See Moreau v. Air France, 356 F.3d
942, 946-47 (9th Cir. 2004); Martinez v. Combs, 49 Cal.4th 35, 64 (2010).
AFFIRMED.
3