United States District Court, D. Colorado
WILLIAM POWERS, MAP MANAGEMENT LLC, and BLACK WIDOW LLC, Plaintiffs,
EMCON ASSOCIATES, INC., MICHAEL COCUZZA, and MICHAEL MICHOWSKI, Defendants.
KATHLEEN M. TAFOYA UNITED STATES MAGISTRATE JUDGE.
matter is before the court on “Plaintiffs' Motion
for Partial Summary Judgment.” (Doc. No. 89.)
Defendants filed a Response (Doc. No. 97), to which
Plaintiffs replied. (Doc. No. 103.) Also before the court is
“Plaintiffs' Motion for Reconsideration”
(Doc. No. 129), to which Defendants filed a Response. (Doc.
William Powers entered into an Employment Agreement
(“EA”) with former Defendant FMNow, LLC
(“FMNow”) in October 2012. By this action,
Plaintiffs assert various causes of action based on their
allegation that FMNow failed to pay Plaintiff Powers the
compensation he was due under the EA, including but not
limited to a monthly stipend in the amount of $8000.00. In
August 2013, Plaintiff Powers was placed on the payroll of
Defendant Emcon Associates, Inc. (“Emcon”) and
Emcon paid Plaintiff Powers his monthly stipend until his
termination in February 2014.
have asserted claims against Emcon only for breach of
contract, violation of the Colorado Wage Act
(“CWA”), unjust enrichment, retaliation under the
CWA and retaliation under the Fair Labor Standards Act
(“FLSA”). Additionally, Plaintiffs have asserted a
claim against Emcon, Emcon's Chief Administrative
Officer, Defendant Michowski, and Emcon's Chief Executive
Officer, Defendant Cocuzza, under the FLSA for failure to pay
wages. Plaintiffs' claims against Emcon depend on a
finding that FMNow is an alter ego of Emcon.
Motion for Partial Summary Judgment
do not seek summary judgment on any one of their six legal
claims but instead only on the issue of whether FMNow is the
alter ego of Emcon. However, “‘an action to
pierce the corporate veil is not a separate and independent
cause of action, but rather is merely a procedure to enforce
an underlying judgment.'” ADEMA Techs., Inc. v.
Eiffert, No. 13-cv- 01139-CMA-BNB, 2014 WL 1099770, at
*2 n.2 (D. Colo. March 19, 2014) (quoting Swinerton
Builders v. Nassi, 272 P.3d 1174, 1177 (Colo.App.
2012)). “It is well-settled that Rule 56 permits a
party to seek summary judgment only as to an entire claim; a
party may not seek summary judgment on a portion of a
claim.” Home Design Servs., Inc. v. Schroeder
Const., No. 09-cv-01437-WJM-GJR, 2012 WL 527202, at *1
(D. Colo. Feb. 16, 2012) (citing Carbajal v. Lincoln
Benefit Life Co., No. 06-cv-00884, 2007 WL 2221147, *3
(D. Colo. July 31, 2007); City of Wichita, Kan.
v. U.S. Gypsum Co., 828 F.Supp. 851, 869 (D. Kan. 1993),
aff'd in part, rev'd in part on other
grounds, 72 F.3d 1491 (10th Cir. 1996) (“A party
is not entitled to partial summary judgment if the judgment
would not be dispositive of the claim.”); Kendall
McGaw Labs., Inc. v. Cmty. Mem'l Hosp., 125 F.R.D.
420, 421 (D.N.J. 1989) (describing as “well
settled” the principles that summary judgment could be
had as to one claim among many, but not as to one portion of
a claim); Capitol Records, Inc. v. Progress Record
Distrib., Inc., 106 F.R.D. 25, 28 (N.D. Ill. 1985)
(deeming a motion seeking summary judgment “as to less
than a single claim” to be improper)).
Federal Rules of Civil Procedure clearly contemplate a party
moving for summary judgment on less than every claim and/or
party. Rule 56(a), provides, “A party may move for
summary judgment, identifying each claim or defense--or the
part of each claim or defense--on which summary judgment is
sought.” See also 10B Charles Alan Wright
& Arthur R. Miller, Federal Practice &
Procedure § 2737 (4th ed. 2017) (“Rule 56(a)
. . . includes express authority for judgment on less than
the entire case . . . .”). Notably, Rule 56(g)
provides, “If the court does not grant all the relief
requested by the motion, it may enter an order stating any
material fact--including an item of damages or other
relief--that is not genuinely in dispute and treating the
fact as established in the case.” At first glance, this
language may appear to support a request for summary judgment
on factual issues, rather than claims. However, the Advisory
Committee Notes explicitly state that this subsection only
applies “after the court has applied the general
summary-judgment standard in subdivision (a) to each claim or
defense on which a party moved. If the court determines that
summary judgment is not warranted, then [the court has the
discretion] to consider establishing undisputed material
facts.” 10B Charles Alan Wright & Arthur R. Miller,
Federal Practice & Procedure § 2737 (4th ed. 2017)
(citing Fed.R.Civ.P. 56(f) advisory committee notes to 2010
amendment). Here, the court is not applying subdivision (a)
because Plaintiffs did not proffer a claim in their motion
upon which judgment could be granted.
court, as well as others, have expressly found motions
seeking to resolve only one issue relevant to a
plaintiff's claims to be entirely inappropriate under any
provision of Rule 56. See Mitchell v. KDJM-FM, No.
06-cv-1427-EWN-BNB, 2007 WL 2572330, at * (D. Colo. Sept. 6,
2007) (noting that Rule 56(g) “provides for an order
specifying the facts that appear without substantial
controversy, but . . . does not authorize an independent
motion to establish certain facts as true.” (internal
quotations omitted)); see also Moses H. Cone Mem'l
Hosp. Operating Corp. v. Conifer Physician Servs., No.
1:13CV651, 2017 WL 1378144, at *5 (M.D. N.C. April 11, 2017)
(denying a motion for summary judgment where the moving party
did not request judgment on a particular claim but instead
sought “a pruning of factual allegations related to
[the] breach of contract claim.”); Cardenas v.
Kanco Hay, L.L.C., No. 14-1067-SAC, 2016 WL 3881345, at
*7 (D. Kan. July 18, 2016) (“While plaintiff's
motion states that plaintiff is asking for partial summary
judgment, the motion does not describe a claim or part of a
claim upon which a “judgment” may be entered.
Judgment cannot be entered upon . . . ‘elements' of
the claims upon which plaintiff moves for partial summary
judgment.”); Hawkinson v. Montoya, No.
CIVA04CV01271-EWNBNB, 2007 WL 776674, at *2 (D. Colo. March
12, 2007) (“[A] motion such as Plaintiff's, which
seeks to resolve only specified issues relevant to his
claims, is entirely inappropriate under any provision of Rule
56.”); U.S. Gypsum Co., 828 F.Supp. at 869
(holding that Rule 56(g) “does not authorize an
independent motion to establish certain facts as true but
merely serves to salvage some constructive result from the
judicial effort expended in denying a proper summary judgment
motion.”). Thus, the court finds Plaintiffs motion
inappropriate under Rule 56 and denies the same.
Motion for Reconsideration
also request the court reconsider its previous Order striking
Exhibit 18 to Plaintiffs' Reply to their Motion for
Partial Summary Judgment. (Doc. No. 121.) In light of the
ruling herein, the court finds consideration of this request
that “Plaintiffs' Motion for Partial Summary
Judgment” (Doc. No. ...