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Fuentes v. Compadres, Inc.

United States District Court, D. Colorado

December 12, 2017

JAIME FUENTES, individually and on behalf of others similarly situated, Plaintiffs,
v.
COMPADRES, INC., d/b/a Tequila's Golden, TEQUILAS THORNTON NUMBER 6, LLC, d/b/a Tequila's Thornton, TEQUILAS OF THORNTON, LLC d/b/a Tequila's Thornton, EL AGAVE AZUL, INC. d/b/a El Tequileno Arvada, EL NOPAL, INC. d/b/a El Tequileno Lakewood, EL TEQUILENO #1 d/b/a El Tequileno Aurora, JOSE RAIGOZA DeJESUS GARCIA, and RODRIGO SANCHEZ, Defendants.

          RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          MICHAEL E. HEGARTY, UNITED STATES MAGISTRATE JUDGE.

         Plaintiff Jaime Fuentes, on behalf of himself and others similarly situated (“Plaintiff”), initiated this action on May 12, 2017 and filed the operative Second Amended Complaint on September 15, 2017 alleging, inter alia, that the Tequila Defendants[1] and the Tequileno Defendants, [2]which are restaurants and alleged owners/managers of the restaurants, failed to pay the proper overtime rate for hours over 40 worked in the workweek, retained tips for management, failed to provide adequate notice related to the tip credit, and over-reported his tips on paystubs in violation of the Fair Labor Standards Act (“FLSA”) and the Colorado Wage Claim Act (“CWCA”). Each set of Defendants filed a motion to dismiss all claims against them. The Court finds that the Plaintiff's state law claims against the individual Defendants must be dismissed, but none of the other arguments proffered by the Defendants support dismissal at this stage of the litigation and, thus, the Court recommends that the Honorable Christine M. Arguello grant in part and deny in part the Defendants' motions.

         BACKGROUND

         I. Statement of Facts

         The following are factual allegations (as opposed to legal conclusions, bare assertions, or merely conclusory allegations) made by the Plaintiff in the Second Amended Complaint, which are taken as true only for analysis under Fed.R.Civ.P. 12(b)(6) pursuant to Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

         Plaintiff worked for Tequila's Family Mexican Restaurant as a waiter/bartender from October 24, 2016 to February 22, 2017. For the first couple of months, Plaintiff worked at the Thornton location, then for the next two months he worked at the Golden location. Regardless of the location, Plaintiff Fuentes' paycheck included the same notation at the top: “Tequila's Family Mexican Restaurants, 17535 S Golden Road Golden, CO 80401-2635.”

         Both the Thornton and Golden locations used the same kind of point-of-sale (“POS”) system for clocking in and out and placing customers' orders. The menus at the two restaurants were the same. The logo and signs at the two restaurants looked the same. Further, regardless of the location, Plaintiff was required to wear the same uniform, a long sleeved grey shirt with the Tequila's logo on it.

         Plaintiff's manager in Golden, “Alejandro, ” worked at Thornton as a server with Plaintiff. Plaintiff knows other people who worked at Thornton and who started working at Golden when it reopened. Additionally, he knows other servers who had worked at various Tequila's Family Mexican Restaurant locations.

         In addition to waiting tables, Plaintiff was tasked with “side work” such as loading ice into the soda machine, making iced tea, slicing lemons, stocking the salt and pepper racks, cleaning the tables and floors, writing the daily lunch specials for customers, and rolling silverware. In his position, Plaintiff regularly interacted with customers who were from all across the United States. He handled food and other supplies that originated outside of Colorado, and he utilized Defendants' credit card machine to process payments.

         When he worked in Thornton, Plaintiff estimates that, on average, he worked 45 hours per week. In Golden, Plaintiff estimates that he worked 55 hours per week for the first three weeks after the location opened, after which he worked about 45 hours per week. Plaintiff usually worked six days per week, or every day of the week except Tuesday, and he almost always worked both the lunch and dinner shifts. Generally, Plaintiff started work around 10:00 a.m. before the restaurants opened for customers at 10:45 a.m. in Golden or 11:00 a.m. in Thornton. Then, Plaintiff would clock out in the middle of the afternoon, for approximately two-to-three hours, between 2:00 p.m. and 5:00 p.m. The restaurants both closed at 11:00 p.m. on Fridays and Saturdays and at 10:00 p.m. during the remaining days of the week. Plaintiff would generally clock out at closing time, unless there were any guests remaining in his section. In such circumstances, he clocked out shortly after the last customer left, typically twenty-to-thirty minutes after closing time.

         For the biweekly pay period ending December 31, 2016, Plaintiff's paystub indicates that he worked more than eighty-six hours at the Golden location. Thus, in at least one of the two weeks constituting that pay period he worked more than forty hours per week. He also worked “off the clock, ” meaning the Defendants required Plaintiff to perform work before clocking in and/or after clocking out. Specifically, Defendants regularly required Plaintiff to clock out, then perform the “side work” and cleaning activities, which took approximately twenty-to-thirty minutes per day to perform. Defendants did not pay Plaintiff for this time in wages, nor did he receive any tips related to this time. For almost every shift he worked at Golden, Plaintiff's manager, Alejandro, required him to clock out, then perform cleaning activities. When he worked at Thornton under a different manager, such requirement happened less frequently, but still occurred approximately two-to-three times per week.

         In this position, Plaintiff's pay scheme was sub-minimum wage plus tips. In 2016 (and the first pay period of 2017), his regular hourly rate was $5.28 per hour and his overtime rate was $7.92 per hour. Thereafter in 2017, his hourly wage rate was $6.28 per hour and the overtime rate was $9.14 per hour. Thus, Plaintiff was paid an incorrect rate for all hours over 40 worked in a workweek.

         Plaintiff, like others similarly situated, was never informed about or provided notice of any tip credit claimed by the Defendants. Even though customers would regularly leave tips on credit cards, tips were only ever paid to servers, including Plaintiff, in cash at the end of the shift, not by paychecks. On the pay stubs, all the tips were reported as cash tips. Management retained tips intended for Plaintiff and others similarly situated. At some point when he was working at Golden, Plaintiff realized that the amount of tips reported on his paystubs was more than he actually received. In around mid-February 2017, he complained to Defendant Garcia about the over-reporting of his tips. Approximately one week later, the manager, Alejandro, accused Plaintiff of stealing tequila and fired him.

         II. Procedural History

         Based on these factual allegations, Plaintiff claims on behalf of himself and other similarly situated willful violations of the FLSA including minimum wage violations; failures to compute overtime properly for sub-minimum wage tipped workers; and incorrect payment of overtime and minimum wages due to incorrect accounting of hours worked. Am. Compl., ECF No. 63. Plaintiff also claims violations of the CWCA, including failures to pay minimum wages and weekly overtime premiums; improper payment of tips, failure to pay wages when due, failure to pay all earned wages, failure to properly keep records, and willful failure to respond to a wage demand. Id.

         Both the Tequila Defendants and the Tequileno Defendants responded to the operative pleading by filing motions to dismiss arguing that, since Plaintiff was not employed by some of the Defendants, he had no standing to bring claims against them and the Court lacks subject matter jurisdiction to hear such claims. In addition, the Defendants contend that Plaintiff fails to state plausible claims under the FLSA and CWCA, and the individual Defendants are not liable under the CWCA.

         Plaintiff counters that, even were he not employed by some Defendants, his allegations plausibly demonstrate that all Defendants are liable under the FLSA and CWCA as a “single employer” or “single enterprise, ” which is a theory different than the “joint employer” doctrine applied by the Defendants. Further, Plaintiff contends that for collective (or class) action complaints such as that here, courts have historically found that a plaintiff need not “determine conclusively” which of the defendant companies was his or her employer at the pleading stage. Plaintiff also contends that the individuals are properly named as Defendants under the FLSA and CWCA, FLSA coverage questions are not proper for Rule 12 analysis, and Plaintiff's allegations are sufficient to demonstrate plausible overtime claims, improper retention of tips, and record-keeping failures. Finally, Plaintiff asks that, should the Court determine his allegations are insufficient, he be granted leave to file a third amended complaint.

         Defendants reply[3] that they are separately owned and, thus, do not meet the definition of a “single enterprise”; Plaintiff fails to establish an employee-employer relationship with certain Defendants; Plaintiff fails to properly rebut Defendants' argument that his allegations do not demonstrate enterprise coverage; Plaintiff should not be granted leave to amend for the fourth time; Plaintiff's allegations are insufficient to state claims for overtime and improper retention of tips; and Plaintiff cannot sue an individual under the CWA.

         LEGAL STANDARDS

         Defendants contend this Court lacks subject matter jurisdiction over Plaintiff's claims pursuant to Fed.R.Civ.P. 12(b)(1) and, otherwise, they argue Plaintiff fails to state claims for relief pursuant to Fed.R.Civ.P. 12(b)(6).

         I. Dismissal under Fed.R.Civ.P. 12(b)(1)

         Rule 12(b)(1) empowers a court to dismiss a complaint for “lack of subject matter jurisdiction.” Dismissal under Rule 12(b)(1) is not a judgment on the merits of a plaintiff's case, but only a determination that the court lacks authority to adjudicate the matter. See Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir. 1994) (recognizing federal courts are courts of limited jurisdiction and may only exercise jurisdiction when specifically authorized to do so). A court lacking jurisdiction “must dismiss the cause at any stage of the proceeding in which it becomes apparent that jurisdiction is lacking.” Full Life Hospice, LLC v. Sebelius, 709 F.3d 1012, 1016 (10th Cir. 2013). A Rule 12(b)(1) motion to dismiss must be determined from the allegations of fact in the complaint, without regard to mere conclusory allegations of jurisdiction. Smith v. Plati, 258 F.3d 1167, 1174 (10th Cir. 2001). The burden of establishing subject matter jurisdiction is on the party asserting jurisdiction. Butler v. Kempthorne, 532 F.3d 1108, 1110 (10th Cir. 2008). Accordingly, the Plaintiff in this case bears the burden of establishing that the Court has jurisdiction to hear his claims.

         Generally, Rule 12(b)(1) motions to dismiss for lack of subject matter jurisdiction take two forms. Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995).

First, a facial attack on the complaint's allegations as to subject matter jurisdiction questions the sufficiency of the complaint. In reviewing a facial attack on the complaint, a district court must accept the allegations in the complaint as true.
Second, a party may go beyond allegations contained in the complaint and challenge the facts upon which subject matter jurisdiction depends. When reviewing a factual attack on subject matter jurisdiction, a district court may not presume the truthfulness of the complaint's factual allegations. A court has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1). In such instances, a court's reference to evidence outside the pleadings does not convert the motion to a Rule 56 motion.

Id. at 1002-03 (citations omitted). The present motion launches a factual attack on this Court's subject matter jurisdiction; therefore, the Court will accept not the truthfulness of the Second Amended Complaint's factual allegations for its Rule 12(b)(1) analysis.

         II. Dismissal Pursuant to Fed.R.Civ.P. 12(b)(6)

         “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Iqbal, 556 U.S. at 678 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility, in the context of a motion to dismiss, means that the plaintiff pled facts which allow “the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Twombly requires a two prong analysis. First, a court must identify “the allegations in the complaint that are not entitled to the assumption of truth, ” that is, those allegations which are legal conclusions, bare assertions, or merely conclusory. Id. at 679-80. Second, the Court must consider the factual allegations “to determine if they plausibly suggest an entitlement to relief.” Id. at 681. If the allegations state a plausible claim for relief, such claim survives the motion to dismiss. Id. at 680.

         Plausibility refers “to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs ‘have not nudged their claims across the line from conceivable to plausible.'” Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012) (quoting Robbins v. Okla., 519 F.3d 1242, 1247 (10th Cir. 2008)). “The nature and specificity of the allegations required to state a plausible claim will vary based on context.” Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1215 (10th Cir. 2011). Thus, while Rule 12(b)(6) standard does not require that a plaintiff establish a prima facie case in a complaint, the elements of each alleged cause of action may help to determine whether the plaintiff has set forth a plausible claim. Khalik, 671 F.3d at 1191.

         ANALYSIS

         At the outset, the Court recognizes the Tenth Circuit's admonition that “[f]ederal courts ‘have an independent obligation to determine whether subject-matter jurisdiction exists . . . at any stage in the litigation.'” Image Software, Inc. v. Reynolds & Reynolds Co., 459 F.3d 1044, 1048 (10th Cir. 2006) (citing Arbaugh v. Y & H Corp., 546 U.S. 500, 506 (2006)). The Tequileno Defendants challenge whether this Court has subject matter jurisdiction to hear Plaintiff's claims by arguing primarily that Plaintiff had no employment relationship with them. The Tequila Defendants make this same argument regarding Tequilas of Thornton, LLC and, otherwise, contend Plaintiff fails to allege individual or enterprise coverage under the FLSA. The Court will begin with an analysis of the challenge to subject matter jurisdiction.

         I. Does an Employment Relationship under the FLSA Implicate the Court's Jurisdiction?

         It appears that the Tenth Circuit has not addressed whether the employment relationship under the FLSA is a jurisdictional question, but at least one court in this District has followed other district courts in finding that it is. See Murphy v. Allstaff Med. Res., Inc., No. 16-cv-02370-WJM, 2017 WL 2224530, at *3 (D. Colo. May 22, 2017) (“The Court agrees with the proposition that existence of an employment relationship between or among the parties is a jurisdictional requirement under the FLSA.”) (citing Li v. Renewable Energy Solutions, Inc., No. 11-3589 (FLW), 2012 WL 589567, at *4-5 (D. N.J. Feb. 22, 2012)); see also Doe I v. Four Bros. Pizza, Inc., No. 13 CV 1505 (VB), 2013 WL 6083414, at *5 (S.D. N.Y. Nov. 19, 2013) (“Unlike in Arbaugh, the FLSA's employer-relationship language appears in a statutory provision that plainly speaks in jurisdictional terms, by addressing the jurisdiction of the federal courts to hear claims arising under the FLSA.”) (citing 29 U.S.C. § 216(b)); White v. Classic Dining Acquisition Corp., No. 1:11-cv-712-JMS, 2012 WL 1252589, at *2 (S.D. Ind. Apr. 13, 2012) (finding a plaintiff, who was not an employee of twenty-six out of twenty-eight named defendants, had no standing to sue the twenty-six defendants).

         In Arbaugh, the Supreme Court addressed whether Title VII's[4] limitation of covered employers to those with 15 or more employees affected subject-matter jurisdiction or was “simply an element of a plaintiff's claim for relief.” 546 U.S. at 510-11. The Court noted that “[s]ubject matter jurisdiction in federal-question cases is sometimes erroneously conflated with a plaintiff's need and ability to prove the defendant bound by the federal law asserted as the predicate for relief-a merits-related determination.” Id. at 511. The Court concluded that the statutory limitation was not jurisdictional saying, “neither § 1331, nor Title VII's jurisdictional provision, 42 U.S.C. § 2000e-5(f)(3) (authorizing jurisdiction over actions ‘brought under' Title VII), specifies any threshold ingredient akin to 28 U.S.C. § 1332's monetary floor. Instead, the 15-employee threshold appears in a separate provision that ‘does not speak in jurisdictional terms or refer in any way to the jurisdiction of the district courts.'” Id. at 515 (quoting Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 394 (1982)). The Court's “bright line” rule-“when Congress does not rank a statutory limitation on coverage as jurisdictional, courts should treat the restriction as nonjurisdictional in character” (id.)-has been applied to determine the jurisdictional parameters of other federal statutes, including the FLSA.

         For example, in Gilbert v. Freshbikes, LLC, 32 F.Supp.3d 594, 600 (D. Md. 2014), the court addressed whether the defendant's contention that it was not an employer under either Title VII or the FLSA was “jurisdictional.” The Gilbert court looked at the definitions of “employer” and “employee” under the FLSA and applied Arbaugh's “bright line” rule to conclude, “whether a defendant is an employer as defined by the FLSA is an element of the plaintiff's meritorious FLSA claim and does not implicate subject matter jurisdiction.” Id. at 601; see also Chavez v. Montes, 91 F.Supp.3d 1091, 1092 (W.D. Ark. 2015) (“the Court finds that the question of FLSA [enterprise] coverage is not a jurisdictional inquiry”); Fuqua v. Celebrity Enters., Inc., No. 12-cv-00208-WJM, 2012 WL 4088857, at *2 (D. Colo. Sept. 17, 2012) (citing Arbaugh and finding, “the Supreme Court has held that definitional requirements in a statutory scheme-such as who is an ‘employer' or ‘employee'-are more properly considered an element of the offense rather than a jurisdictional issue.”); Rodriguez v. Diego's Rest., Inc., 619 F.Supp.2d 1345, 1350 (S.D. Fla. 2009) (“This Court is persuaded by the reasoning in Arbaugh that the requirement that a plaintiff establish individual or enterprise coverage is not jurisdictional.”). These latter cases (and others not cited here) make clear that questions of employee/employer coverage under the FLSA are not jurisdictional.

         However, Murphy and related opinions conclude that the employment relationship is governed in the FLSA by § 216, which “uses the terms ‘employee' and ‘employer' throughout, refers to the employment relationship, and speaks in clear jurisdictional terms, stating that ‘[a]n action to recover [for] liability ... may be maintained against any employer (including a public agency) in any Federal or State court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated.'” Id. (citing 29 U.S.C. § 216(b)); see also Four Bros. Pizza, 2013 WL 6083414, at *5 (“Unlike in Arbaugh, the FLSA's employer- relationship language appears in a statutory provision that plainly speaks in jurisdictional terms, by addressing the jurisdiction of the federal courts to hear claims arising under the FLSA.”).

         Notably, in Four Bros. Pizza and Li, the courts determined whether an employee-employer relationship existed by examining the “economic realities” of such relationships. The Tenth Circuit, too, has used the “economic reality” test to examine whether a plaintiff is an employee under the FLSA. See, e.g., Johnson v. Unified Gov't of Wyandotte Cnty., 371 F.3d 723, 729 (10th Cir. 2004); Baker v. Flint Eng'g & Constr. Co., 137 F.3d 1436, 1440 (10th Cir. 1998); Henderson v. Inter-Chem Coal Co., 41 F.3d 567, 570 (10th Cir. 1994). However, while it was not asked to do so, in none of these cases did the Tenth Circuit characterize the existence of an employment relationship under the FLSA as jurisdictional. In fact, in Johnson, the trial court sent the question of whether the plaintiffs were employees to the jury. Johnson, 371 F.3d at 728-29. Also, in approaching its analysis of the issue, the Johnson court stated, “As applied to the plaintiffs in this case and their relationship to the defendants, the FLSA generally defines an employee as ‘any individual employed by a ... political subdivision of a State ....' 29 U.S.C. § 203(e)(1).” Id. at 729 (emphasis added). Thus, it is unclear whether the Tenth Circuit, faced with the question whether an employment relationship under the FLSA is jurisdictional, would answer affirmatively.

         More recently, the Seventh Circuit followed the analysis of a District of Maryland case finding, in response to a standing inquiry, that “[u]nder the FLSA, alleged employees' ‘injuries are only traceable to, and redressable by, those who employed them.'” Berger v. Nat'l Collegiate Athletic Ass'n, 843 F.3d 285, 289 (7th Cir. 2016) (quoting Roman v. Guapos III, Inc., 970 F.Supp.2d 407, 412 (D. Md. 2013)). Without further analysis, the court determined that the plaintiffs' “connection to the other schools and the NCAA is far too tenuous to be considered an employment relationship” and concluded the plaintiffs lacked standing to sue any defendant other than their undisputed employer. Id.

         Notably, Roman appears to be contrary to Gilbert, supra, both of which originate from the District of Maryland and were issued by the same judge. In both cases, certain defendants filed motions to dismiss for lack of subject matter jurisdiction arguing they were not the plaintiffs' employers. See Roman, 970 F.Supp.2d at 411-12 (“Defendants contend that Plaintiffs have failed to establish subject matter jurisdiction because their complaint fails sufficiently to allege that Defendants were Plaintiffs' ‘employer' for purposes of the FLSA”); Gilbert, 32 F.Supp.3d at 600 (“Defendants assert that they were not Plaintiff's employer under either Title VII or the FLSA, and the court assumes that this is the basis for their subject matter challenge.”). In Roman, issued September 6, 2013, the court granted the motion to dismiss finding that the plaintiffs lacked standing to bring a putative collective action against restaurants at which they were not employed because they failed to demonstrate “the required employer-employee relationship necessary to establish that their injuries [were] fairly traceable to the Corporate Defendants, [ ]or that a favorable decision against the Corporate Defendants would redress Plaintiffs' alleged injuries.” 970 F.Supp.2d at 415-16. Conversely, in Gilbert issued July 9, 2014, the court found that “whether a defendant is an employer as defined by the FLSA is an element of the plaintiff's meritorious FLSA claim and does not implicate subject matter jurisdiction.” 32 F.Supp.3d at 601.[5] In light of this incongruity and the Seventh Circuit's lack of analysis on the issue, the Court is not inclined to recommend following the opinions in Berger and Roman.[6]

         The Court concludes that, without clear direction from the Tenth Circuit as to whether an employee-employer relationship under the FLSA is a jurisdictional question, as well as the Tenth Circuit's past opinions demonstrating the court has not historically considered the question to be jurisdictional in nature, this Court respectfully declines to follow the unpublished opinions in Murphy, Li, and Four Bros. Pizza, and recommends that Judge Arguello refuse the Defendants' invitation to analyze the issue wholly pursuant to Rule 12(b)(1).

         II. Do the Allegations Plausibly State Plaintiff is an Employee of Defendants?

         Defendant Tequilas of Thornton LLC and the Tequileno Defendants argue the Plaintiff is not, and never was, an employee of theirs and Plaintiff's allegations are insufficient to show employment relationships under either the joint employer doctrine or the economic realities test. Plaintiff counters that his allegations are indeed sufficient to demonstrate employment relationships with the Tequileno Defendants and Tequilas of Thornton, not under the “joint employer” doctrine, [7] but under a “single employer” theory.

         A. Application of the Single Employer Theory

         The Tenth Circuit has articulated the difference between the “joint employer” and “single employer” doctrines as follows: “Although these two tests are sometimes confused, they differ in that the single-employer test asks whether two nominally separate entities should in fact be treated as an integrated enterprise, while the joint-employer test assumes that the alleged employers are separate entities.” Bristol v. Bd. of Cnty. Comm'rs of Clear Creek, 312 F.3d 1213, 1218 (10th Cir. 2002) (applying tests for analysis of claims under the Americans with Disabilities Act).

         “[T]he single employer test focuses on the relationship between the potential employers themselves.” Knitter v. Corvias Military Living, LLC, 758 F.3d 1214, 1227 (10th Cir. 2014) (applying tests for analysis of gender discrimination claim pursuant to Title VII). “Courts applying the single-employer test generally weigh four factors: ‘(1) interrelations of operation; (2) common management; (3) centralized control of labor relations; and (4) common ownership and financial control.'” Id. (quoting Bristol, 312 F.3d at 1220). For purposes of finding shared liability, courts including the Tenth Circuit “generally consider the third factor-centralized control of labor relations-to be the most important.” Sandoval v. City of Boulder, 388 F.3d 1312, 1322 (10th Cir. 2004) (applying tests for analysis of gender, race, and national origin claims under Title VII).

         Importantly, the Plaintiff has cited, and the Court has found, no Tenth Circuit opinion applying the single employer doctrine to determine whether an employment relationship exists under the FLSA. Courts agree that Title VII defines an “employer” quite differently than the FLSA defines the same term. See, e.g., Salemi v. Colo. Pub. Emps. Ret. Ass'n, 176 F.Supp.3d 1132, 1158 (D. Colo. 2016); see also Saavedra v. Lowe's Home Ctrs., Inc., 748 F.Supp.2d 1273, 1283 (D. N.M. 2010). However, without recognizing any difference between Title VII and the FLSA, at least one district court in the Tenth Circuit has cited Bristol and applied its single employer test, including the four factors, to determine whether the addition of certain defendants to an FLSA complaint would be futile under Rule 12(b)(6). See Creech v. P.J. Wichita, LLC, No. 16-2312-JAR-GEB, 2016 WL 4702376, at *3 (D. Kan. Sept. 8, 2016). The court found that the plaintiff's ...


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