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Perez v. Pinon Management, Inc.

United States District Court, District of Colorado

November 4, 2014

PATRICIA PEREZ, an individual, on behalf of herself and others similarly situated, Plaintiff,

For Patricia Perez, an individual, on behalf of herself and others similarly situated, Plaintiff: Meghan W. Martinez, LEAD ATTORNEY, Martinez Law Group, P.C., Denver, CO; Gerald D. Wells, III, Connolly Wells & Gray, LLP, King of Prussia, PA; Michael James Hynes, Hynes Keller & Hernandez, LLC-King of Prussia, King of Prussia, PA.

For Pinon Management, Inc., Ponderosa Care Communities A LLC, Defendants: Andrew Wayne Volin, Matthew M. Morrison, Patrick Richard Scully, Sherman & Howard, L.L.C.-Denver, Denver, CO.


RAYMOND P. MOORE, United States District Judge.

This matter is before the Court on Magistrate Judge Hegarty's Recommendation (" Recommendation") (ECF No. 67), Plaintiff Patricia Perez's Objections to the Recommendation (ECF No. 68), as well as Defendants Pinon Management, Inc. (" Pinon") and Ponderosa Care Communities A LLC d/b/a/ North Start Community's (" North Star") Objection to the Recommendation (ECF No. 69). Both the Recommendation and objections pertain to Defendants' motion for summary judgment (ECF No. 41) on Plaintiff's claim under the Fair Labor Standards Act (" FLSA"), 29 U.S.C. § § 201-219 (2014) (ECF No. 16 ¶ ¶ 74-79).

For the reasons stated below, the Court ADOPTS, in part, the Recommendation, OVERRULES, in Part, Plaintiff's objections, OVERRULES Defendants' objection, and GRANTS Defendants' motion for summary judgment.


A. Review of the Magistrate Judge's Report and Recommendation

When a magistrate judge issues a recommendation on a dispositive matter, Federal Rule of Civil Procedure 72(b)(3) requires that the district court judge " determine de novo any part of the magistrate judge's [recommendation] that has been properly objected to." In conducting its review, " [t]he district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions." Fed.R.Civ.P. 72(b)(3). An objection to a recommendation is proper if it is filed timely in accordance with the Federal Rules of Civil Procedure and specific enough to enable the " district judge to focus attention on those issues -- factual and legal -- that are at the heart of the parties' dispute." United States v. 2121 E. 30th St., 73 F.3d 1057, 1059 (10th Cir. 1996) (quoting Thomas v. Arn, 474 U.S. 140, 147, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985)). In the absence of a timely and specific objection, " the district court may review a magistrate's report under any standard it deems appropriate." Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991) (citations omitted); see also Fed.R.Civ.P. 72 Advisory Committee's Note (" When 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.").

B. Summary Judgment Standards

Summary judgment is appropriate only if there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Henderson v. Inter-Chem Coal Co., Inc., 41 F.3d 567, 569-70 (10th Cir. 1994). Whether there is a genuine dispute as to a material fact depends upon whether the evidence presents a sufficient disagreement to require submission to a jury or is so one-sided that one party must prevail as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Stone v. Autoliv ASP, Inc., 210 F.3d 1132, 1136 (10th Cir. 2000). Once the moving party meets its initial burden of demonstrating an absence of a genuine dispute of material fact, the burden then shifts to the non-moving party to move beyond the pleadings and to designate evidence which demonstrates the existence of a genuine dispute of material fact to be resolved at trial. See 1-800 Contacts, Inc. v., Inc., 722 F.3d 1229, 1242 (10th Cir. 2013) (citation omitted). A fact is " material" if it pertains to an element of a claim or defense; a factual dispute is " genuine" if the evidence is so contradictory that if the matter went to trial, a reasonable jury could return a verdict for either party. Anderson, 477 U.S. at 248. In considering whether summary judgment is appropriate, the facts must be considered in a light most favorable to the non-moving party. Cillo v. City of Greenwood Vill., 739 F.3d 451, 461 (10th Cir. 2013) (citations omitted).

If a movant properly supports a motion for summary judgment, the opposing party may not rest on the allegations contained in her complaint, but must respond with specific facts showing a genuine factual issue for trial. Fed.R.Civ.P. 56(e); Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (holding that " [t]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact") (citation omitted).

Only admissible evidence may be considered when ruling on a motion for summary judgment. Jaramillo v. Colorado Judicial Dep't, 427 F.3d 1303, 1314 (10th Cir. 2005) (citation omitted) (holding that hearsay evidence is not acceptable in opposing a summary judgment motion); World of Sleep, Inc. v. La-Z-Boy Chair Co., 756 F.2d 1467, 1474 (10th Cir. 1985). Affidavits must be based on personal knowledge and must set forth facts that would be admissible evidence at trial. Murray v. City of Sapulpa, 45 F.3d 1417, 1422 (10th Cir. 1995) (quotations and citation omitted). " Conclusory and self-serving affidavits are not sufficient." Id. The Court will not consider statements of fact, or rebuttals thereto, which are not material or are not supported by competent evidence. Fed.R.Civ.P. 56(c)(1)(A), 56(e)(2), 56(e)(3). " [O]n a motion for summary judgment, it is the responding party's burden to ensure that the factual dispute is portrayed with particularity, without depending on the trial court to conduct its own search of the record." Cross v. The Home Depot, 390 F.3d 1283, 1290 (10th Cir. 2004) (internal quotation and citation omitted). The Court is " not obligated to comb the record in order to make [Plaintiff's] arguments for [her]." See Mitchell v. City of Moore, Okla., 218 F.3d 1190, 1199 (10th Cir. 2000). Further, Local Rule 7.1(e) provides that " [e]very citation in a motion, response or reply shall include the specific page or statutory subsection to which reference is made." D.C. Colo. L. Civ. R. 7.1(e).

C. Justiciability

The United States' Constitution Article III " restricts the authority of federal courts to resolving the legal rights of litigants in actual controversies." Genesis Healthcare Corp. v. Symczyk, 133 S.Ct. 1523, 1528, 185 L.Ed.2d 636 (2013) (quoting Valley Forge Christian Coll. v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 471, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982)). Article III requires a federal court to satisfy itself of its jurisdiction over the subject matter before it considers the merits of a case. Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583, 119 S.Ct. 1563, 143 L.Ed.2d 760 (1999). To avail herself of a federal court's jurisdiction, Plaintiff must demonstrate " a legally cognizable interest" or a " personal stake" in the outcome of an action. Symczyk, 133 S.Ct. at 1528. This burden persists throughout the life of a case. Id. " If an intervening circumstance deprives the plaintiff of a 'personal stake in the outcome of the lawsuit' at any point during the litigation, the action can no longer proceed and must be dismissed as moot." Id. (quoting Lewis v. Cont'l Bank Corp., 494 U.S. 472, 477-78, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990)).

The United States Supreme Court has recognized two exceptions to the mootness rule. The first exception applies where a party's claims are " capable of repetition, yet evading review." S. Pac. Terminal Co. v. Interstate Commerce Comm'n, 219 U.S. 498, 515, 31 S.Ct. 279, 55 L.Ed. 310 (1911). The second exception, known as the " voluntary cessation exception, " allows courts to hear cases in which a defendant who has ceased the challenged activity during the litigation is likely to resume the activity once the litigation has concluded. United States v. W.T. Grant Co., 345 U.S. 629, 632, 73 S.Ct. 894, 97 L.Ed. 1303 (1953).

D. FLSA Claim

" An employee who brings suit under Section 16(b) of the [FLSA] for . . . unpaid overtime compensation, together with liquidated damages, has the burden of proving that [she] performed work for which [she] was not properly compensated." Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 686-87, 66 S.Ct. 1187, 90 L.Ed. 1515 (1946), superseded by statute on other grounds as recognized in Smith v. Aztec Well Servicing Co., 462 F.3d 1274, 1286-87 (10th Cir. 2006); accord Brown v. ScriptPro, LLC, 700 F.3d 1222, 1230 (10th Cir. 2012) (holding that " [t]o succeed on a claim for unpaid overtime, the plaintiff has the burden of proving that [she] performed work for which [she] was not properly compensated").


A. Procedural Background

No party objects to the Magistrate Judge's recitation of the case's procedural history. Accordingly, the Court adopts and incorporates the procedural history included within the Recommendation as if set forth herein. (ECF No. 67 at 6-9.)

Briefly, Plaintiff's Amended Class and Collective Action Complaint (" Complaint") (ECF No. 16) asserts three causes of action against Defendants: (1) an FLSA overtime claim based upon their " fail[ure] to ensure that employees were not performing work during their meal breaks" (ECF No. 16 ¶ ¶ 76, 78); (2) a quantum meruit claim based upon their retaining the benefits of Plaintiff's and others' services and not compensating them for such (ECF No. 16 ¶ 83); and (3) an unjust enrichment claim based upon their ...

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