United States District Court, D. Arizona
Douglas L. Rayes United States District Judge.
Martin Gillard and Darren Gurner allege that Defendants Good
Earth Power AZ, LLC (“GEPAZ”), ZR FEC Ltd.
(“ZR FEC”), Jason Rosamond, and Maya Minkova,
violated the Fair Labor Standards Act (“FLSA”)
and Arizona Wage Act (“AWA”) by failing to pay
Plaintiffs minimum wage and overtime. Plaintiffs also raise
contract claims related to their employment with Defendants.
Before the Court are Defendants' motions for summary
judgment (Docs. 67-69), which are fully
briefed. For the following reasons, Defendants'
motions are granted in part and denied in part.
their disagreements are plentiful, the parties agree on the
following: In early 2013, Gillard entered into a contract to
serve as Chief Technology Officer (“CTO”) for
Good Earth Power Limited (“GEP Ltd”), a British
Virgin Islands company headquartered in Oman, with projects
predominately in Africa. While CTO of GEP Ltd, Gillard worked
with Rosamond and Minkova, who served as directors and
officers of the entity.
early 2014, Gillard began performing work for GEPAZ and ZR
FEC in Arizona. Rosamond was Chief Executive Officer of GEP
Ltd, GEPAZ, and ZR FEC. GEPAZ and ZR FEC were separate but
related entities to GEP Ltd. GEPAZ was the primary contractor
on the United States Forest Service's Four Forest
Restoration Initiative (“4-FRI”) in Northern
Arizona, and ZR FEC oversaw enterprises connected to
GEPAZ's operations. Gillard occupied a number of roles
within GEPAZ and ZR FEC, though the parties dispute whether
this work was being conducted pursuant to Gillard's
agreement with GEP Ltd, or under a new, at-will employment
contract with GEPAZ and ZR FEC. Gillard was terminated at the
end of December 2016.
2013, GEP Ltd contracted with Gurner, through his company
Marlin Wood, to conduct consultancy services. Soon after, GEP
Ltd deployed Gurner to serve as Managing Director of ZR FEC.
The parties agree that this position initially was part of
the consulting agreement. Plaintiffs contend, however, that
by early 2014, Gurner became an employee of GEPAZ and ZR FEC,
continuing on in his role as Managing Director. Gurner served
in this role until he was relieved of his day-to-day
responsibilities in October 2016.
cashflow issues, a portion of Plaintiffs' wages were
deferred. Plaintiffs allege that they never received these
deferred wages. In May 2017, Plaintiffs filed this action,
raising FLSA, AWA, and contract claims. Defendants filed a
counter-claim for conversion. (Doc. 22.) Defendants seek
summary judgment on Plaintiffs' claims. (Docs. 67-69.)
judgment is appropriate when there is no genuine dispute as
to any material fact and, viewing those facts in a light most
favorable to the nonmoving party, the movant is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56(a). Summary
judgment may also be entered “against a party who fails
to make a showing sufficient to establish the existence of an
element essential to that party's case, and on which that
party will bear the burden of proof at trial.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
A fact is material if it might affect the outcome of the
case, and a dispute is genuine if a reasonable jury could
find for the nonmoving party based on the competing evidence.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
party seeking summary judgment “bears the initial
responsibility of informing the district court of the basis
for its motion, and identifying those portions of [the
record] which it believes demonstrate the absence of a
genuine issue of material fact.” Celotex, 477
U.S. at 323. The burden then shifts to the non-movant to
establish the existence of a genuine and material factual
dispute. Id. at 324. The non-movant “must do
more than simply show that there is some metaphysical doubt
as to the material facts, ” and instead “come
forward with specific facts showing that there is a genuine
issue for trial.” Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)
(internal quotation and citation omitted). Conclusory
allegations, unsupported by factual material, are
insufficient to defeat summary judgment. Taylor v.
List, 880 F.2d 1040, 1045 (9th Cir. 1989). If the
non-movant's opposition fails to cite specifically to
evidentiary materials, the court is not required to either
search the entire record for evidence establishing a genuine
issue of material fact or obtain the missing materials.
See Carmen v. S.F. Unified Sch. Dist., 237 F.3d
1026, 1028-29 (9th Cir. 2001); Forsberg v. Pac. N.W. Bell
Tel. Co., 840 F.2d 1409, 1417-18 (9th Cir. 1988).
outset, the Court must address Defendants' request that
the Court disregard Plaintiffs'
“noncompliant” controverting statement of facts,
deem Defendants' statement of facts admitted, and exclude
Plaintiffs' declarations. (Docs. 95-97 at 3.)
Controverting Statement of Facts
District's Local Rules of Practice impose specific
requirements on the form and content of summary judgment
motions. “Any party filing a motion for summary
judgment must file a statement, separate from the motion and
memorandum of law, setting forth each material fact on which
the party relies in support of the motion.” LRCiv
56.1(a). Each of these facts “must refer to a specific
admissible portion of the record where the fact finds support
(for example, affidavit, deposition, discovery response,
etc.).” Id. Likewise:
Any party opposing a motion for summary judgment must file a
statement, separate from that party's memorandum of law,
(1) for each paragraph of the moving party's separate
statement of facts, a correspondingly numbered paragraph
indicating whether the party disputes the statement of fact
set forth in that paragraph and a reference to the specific
admissible portion of the record supporting the party's
position if the fact is disputed; and
(2) any additional facts that establish a genuine issue of
material fact or otherwise preclude judgment in favor of the
moving party. Each additional fact must be set forth in a
separately numbered paragraph and must refer to a specific
admissible portion of the record where the fact finds
LRCiv 56.1(b). The court may deem a movant's separate
statement of facts to be true if the non-movant does not
comply with these rules. See Szaley v. Pima Cty.,
371 Fed. App'x 734, 735 (9th Cir. 2010).
contend that Plaintiffs' controverting statement of
facts: (1) is not correspondingly numbered to their statement
of facts; (2) fails to set out new factual allegations in
separate paragraphs; (3) exceeds the page limit; and (4)
relies on unauthenticated documents. (Docs. 95-97 at 3.) The
Court discusses each in turn.
it simply is untrue that Plaintiffs' controverting
statement of facts is not correspondingly numbered to
Defendants' statement of facts. The one exception is
paragraph 77 of Defendants' statement of facts, which
Plaintiffs fail to address in a correspondingly numbered
paragraph and therefore is admitted for purposes of the
Plaintiffs' controverting statement of facts fails to
comply with the Local Rules because each correspondingly
numbered paragraph does not clearly admit or dispute the fact
Defendants asserted. Instead, Plaintiffs often neglect to say
whether a factual assertion is admitted or disputed, and
instead barrel into a lengthy narrative or argument over the
significance of or inferences that may be drawn from facts
(for a particularly egregious example, see paragraph 71 of
Plaintiffs' controverting statement, which consumes more
than a page). Plaintiffs are strongly encouraged to review
Hunton v. American Zurich Insurance Company, No.
CV-16-00539-PHX-DLR, 2018 WL 1182552 (D. Ariz. Mar. 7, 2018),
which discusses at length how separate and controverting
statements of facts often are misused. In the future, the
first word of any correspondingly numbered paragraph should
be either “admitted” or “disputed.”
If a fact is admitted, there should be no follow up. If a
fact is disputed, the only follow up should be a citation to
the admissible portion of the record where controverting
evidence may be found. If the fact is admitted, but
Plaintiffs believe additional information is needed for
context, that additional evidence should be provided in a
separately numbered statement of additional fact precluding
that said, the Court will not take the extraordinary step of
deeming all of Defendants' statements of fact to be
admitted. Though Plaintiffs' controverting statement
fails to comply with the Local Rules in many of the same ways
described in the Hunton case, it nonetheless is
apparent from the submission that there are genuine and
material disputes of fact. The Court prefers, where possible,
to resolve cases on the merits and not on technicalities,
even when the noncompliant nature of some submissions makes
that task particularly difficult.
Defendants contend that Plaintiffs' controverting
statement of facts “wildly exceeds” the page
limit. In support, Defendants highlight that Paragraph 6(c)
Scheduling Order provides that statements of fact
“shall not exceed 10 pages in length, exclusive of
exhibits.” (Doc. 43.) Plaintiffs' controverting
statement of facts (not counting the exhibits or certificate
of service) spans 24 pages. (Doc. 89.) The Scheduling
Order's 10-page limit, however, applies to the “one
motion for summary judgment.” (Doc. 43 ¶ 6(b).)
Here, upon Defendants' request, the Court allowed
“[D]efendants to file 4 motions for summary
judgment.” (Doc. 64.) Given that the Court's order
failed to clarify how allowing 4 summary judgment motions
rather than 1 affected the length of the accompanying
statement of facts, the Court will not strike the excess
pages. With that said, Plaintiffs probably could have
substantially reduced the length of their controverting
statement of facts had they written it in a manner that
strictly complied with the Local Rules, as explained in
Defendants' contend that Appendices A-I offered in
support of Plaintiffs' controverting statement of facts
“are unauthenticated documents.” (Docs. 95-7 at
3.) In support, Defendants cite Orr v. Bank of
America for the proposition that “unauthenticated
documents cannot be considered in a motion for summary
judgment.” 285 F.3d 764, 773 (9th Cir. 2002).
Defendants, however, “misread Orr to hold
that the Court may not consider unauthenticated documents to
support an argument to overcome summary judgment.”
Ericson v. City of Phx., No. 14-CV-1942-PHX-JAT,
2016 WL 6522805, at *8 (D. Ariz. Nov. 3, 2016).
“Although Orr held that a non-movant's
exhibits were inadmissible for purposes of opposing a motion
for summary judgment, the Ninth Circuit later clarified that
it is the admissibility of the contents of evidence-not its
form-that determines whether evidence is admissible for
purposes of avoiding summary judgment. Id. (citing
Fraser v. Goodale, 342 F.3d 1032, 1036-37 (9th Cir.
2003)). The fact that Plaintiffs' appendices may be
unauthenticated does not bar their consideration for the
limited purpose of opposing Defendants' motions for
summary judgment. See Quanta Indem. Co. v. Amberwood
Devs. Inc., No. 11-CV-1807-PHX-JAT, 2014 WL 126144, at
*16 (D. Ariz. Mar. 26, 2014) (finding that unauthenticated
spreadsheets are admissible for limited purpose of opposing
motion for summary judgment).
contend that Plaintiffs' “declarations should be
disregarded as shams.” (Docs. 95-97 at 3.) “The
general rule in the Ninth Circuit is that a party cannot
create an issue of fact by an affidavit contradicting his
prior deposition testimony.” Van Asdale v.
Int'l Game Tech., 577 F.3d 989, 998 (9th Cir. 2009).
The sham affidavit rule is necessary because “if a
party who has been examined at length on deposition could
raise an issue of fact simply by submitting an affidavit
contradicting his own prior testimony, this would greatly
diminish the utility of summary judgment as a procedure for
screening out sham issues of fact.” Kennedy v.
Allied Mut. Ins. Co., 952 F.2d 262, 266 (9th Cir. 1991).
However, “the sham affidavit rule should be applied
with caution because it is in tension with the principle that
the court is not to make credibility determinations when
granting or denying summary judgment.” Yeager v.
Bowlin, 693 F.3d 1076, 1080 (9th Cir. 2012).
order to trigger the sham affidavit rule, the Court
“must make a factual determination that the
contradiction is a sham, and the inconsistency between a
party's deposition testimony and subsequent affidavit
must be clear and unambiguous to justify striking the
affidavit.” Id. “The non-moving party is
not precluded from elaborating upon, explaining or clarifying
prior testimony elicited by opposing counsel on deposition
and minor inconsistencies that result from an honest
discrepancy, a mistake, or newly discovered evidence afford
no basis for excluding an opposition affidavit.”
Defendants attach a chart setting out inconsistencies they
believe demonstrate that Plaintiffs' declarations are
shams. (Docs. 95-1; 96-1; and 97-1.) However, the statements
in the declarations do not clearly and unambiguously
contradict the declarants' previous deposition testimony.
In fact, some statements have no apparent contradiction to
deposition testimony. For instance, Defendants contend that
Gurner's deposition testimony contradicts his declaration
as to whether he was an employee of GEPAZ. (Doc. 97-1 at 4.)
Defendants argument neglects to mention that, elsewhere in
his deposition, when asked directly whether he was an
employee of GEPAZ, Gurner answered in the affirmative.
Q: You were a salaried employee?
Q: Well, actually, you weren't an employee of any of the
entities, were you? You were an ...