United States District Court, D. Colorado
T. BABCOCK, JUDGE.
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.
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.
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.
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.
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, ¶¶
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.
has attached an affidavit to his response to Defendants'
motion that asserts these same facts with some ...