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Nevarez-Bustillos v. O.P.A. Inc.

United States District Court, D. Colorado

June 19, 2017

RICARDO JAVIER NEVAREZ - BUSTILLOS, Plaintiff,
v.
O.P.A. INC. and MARK OBROCHTA, Defendants.

          ORDER

          LEWIS T. BABCOCK, JUDGE.

         Lewis T. Babcock, Judge This case is before me on Defendants' Second Motion to Dismiss Plaintiff's Complaint Pursuant to Fed.R.Civ.P. 12(b)(6), or in the Alternative, Motion for Summary Judgment [Doc # 23]. After consideration of the motion, all related pleadings, and the case file, I deny Defendants' motion pursuant to Fed. R. Civ. P.

         I. Background

         In this action, Plaintiff's Amended Complaint asserts a single claim for unpaid overtime compensation pursuant to the Fair Labor Standards Act (the “FLSA”), 28 U.S.C. § 201, et seq., based on his employment at Uncle Pizza in Glenwood Springs, Colorado from 2007/2008 to May 16, 2016. Defendant O.P.A., Inc. (“O.P.A.”) operates Uncle Pizza, and Defendant Mark Obrochta (“Obrochta”) is the sole owner of O.P.A.

         Defendants argue that Plaintiff's claim under the FLSA fails because Uncle Pizza des not have the requisite $500, 000 minimum annual gross volume of sales to establish enterprise liability under the FLSA. 29 U.S.C. § 203(s)(1)(a)(ii). My discussion of the facts will therefore be limited to those pertinent to a determination of this issue.

         In support of their motion, Defendants have filed an affidavit from Obrochta. In this affidavit, Obrochta asserts that he is responsible for entering and maintaining all of Uncle Pizza's financial information and that Uncle Pizza's gross sales volume was less than $500, 000 for every 12 month period from 2013 through May 16, 2016. See Doc # 25, ¶¶ 9-10. To support this assertion, Uncle Pizza's federal tax return for the years 2013, 2014, and 2015, and its profit and loss statement from January 1, 2016 through May 16, 2016 are attached to Obrochta's affidavit. Id. at Ex. A.

         To counter Obrochta's affidavit, Plaintiff's Amended Complaint includes the following allegations:

While employed by Defendants, Plaintiff worked 7 days a week at the Glenwood Springs Uncle Pizza. Doc # 21, ¶¶ 10, 15-17.
Uncle Pizza employees, including Plaintiff, would record pizza orders in a book that produced three carbon copies for each order. The pink carbon copies were kept for bookkeeping purposes. Id. at ¶¶ 23-28.
At the end of each of his evening shifts, Plaintiff was responsible for counting the money received and the number of order tickets written that evening at the Glenwood Springs Uncle Pizza and recording this information on a form. Id. at ¶¶ 29-30. Plaintiff would place the completed form plus all cash, order tickets, and receipts in Uncle Pizza's safe. Id. at ¶ 31.
Plaintiff estimates that Uncle Pizza was paid in cash for 40 - 60% of its food sales during the evening shift. Id. at ¶ 33.
Plaintiff asserts that he witnessed Obrochta shredding the pink copies of order tickets on numerous occasions, leading him to believe that Obrochta was pocketing the money from the cash sales instead of reporting it in Defendants' books or depositing it in a bank account. Id. at ¶ 34. Plaintiff also asserts that he overheard a conversation between Obrochta and his former business partner about “hiding cash” and that Defendants paid several employees in cash. Id. at ¶¶ 35 & 37.
As a result of the money that he received and counted every evening at the Glenwood Springs Uncle Pizza, Plaintiff believes that Defendants received at least $500, 000 in gross receipts annually. Id. at ¶ 38.

         Plaintiff has attached an affidavit to his response to Defendants' motion that asserts these same facts with some ...


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