Dean v. Pac. Bellwether, LLC

• Citation: 996 F.Supp.2d 1044
• Decision Date: 06 February 2014
• Docket Number: Case No. 1:13–cv–00020.
• Court: U.S. District Court — Northern Mariana Islands
• Parties: Corazon DEAN, Plaintiff, v. PACIFIC BELLWETHER, LLC, Defendant.

996 F.Supp.2d 1044

Corazon DEAN, Plaintiff,

v.PACIFIC BELLWETHER, LLC, Defendant.

Case No. 1:13–cv–00020.

District Court for the Northern Mariana Islands.

Feb. 6, 2014.

Joseph E. Horey, O'Connor Berman Dotts & Banes, Saipan, MP, for Plaintiff.

Jennifer Dockter, Saipan, MP, for Defendant.

OPINION AND ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

RAMONA V. MANGLONA, Chief Judge.

The question of how old law applies to the Internet has often challenged courts. See Edward Lee, Rules and Standards for Cyberspace, 77 Notre Dame L.Rev. 1275, 1278, 1283–84 (2002). Undertaking the challenge, this Court addresses how use of the Internet affects coverage under the Fair Labor Standards Act (“FLSA”). It concludes that use of the Internet to download freely available recipes, without more, does not provide a basis for coverage.

The Court also addresses another issue in flux: Does the FLSA anti-retaliation provision require showing that the employee or employer was engaged in commerce or in the production of goods for commerce? The Court holds it does not.

For these reasons and others, the Court DENIES Defendant Pacific Bellwether's motion for summary judgment (ECF No. 7 (hereinafter “Motion”)).

I. BACKGROUND

Plaintiff Corazon Dean is a citizen of the Philippines and a resident of the Commonwealth of the Northern Mariana Islands (“Commonwealth”). (ECF No. 4 at ¶ 2 (hereinafter “Complaint”).) She worked at Defendant Pacific Bellwether's restaurant, Shenanigan's, as a cook from 2010 to 2013. ( See id. at ¶ 4; ECF No. 11–3 at 1 (hereinafter “Dean Declaration”).)

What Dean's duties included, besides cooking meals (ECF No. 7–1 at 5), is disputed. She contends that she was in charge of recipe development and that this duty often required using the Internet to download recipes from websites like foodnetwork.com. ( See Dean Declaration at 1–3; ECF No. 11–5; see also ECF Nos. 11–7, 11–8.) Pacific Bellwether provides evidence to the contrary: Dean never participated in recipe development. ( See ECF No. 7–1 at 4–5.)

Dean alleges that Pacific Bellwether wrongfully paid her below the minimum wage and failed to pay her overtime, as required by FLSA. ( See Complaint at ¶¶ 12, 1619.) Dean also alleges that she gave four weeks' notice of her resignation in March 2013, as required by her employment contract, and demanded her unpaid overtime. ( Id. at ¶ 13.) In response, Pacific Bellwether terminated Dean's employment almost immediately. ( See id. at ¶¶ 13–14, 20–21.) Dean alleges that this was a form of retaliation in violation of FLSA. ( See id. at ¶¶ 20–21.)

Dean filed this action in August 2013. (ECF No. 1.) Within a month, Pacific Bellwether filed a motion to dismiss (ECF No. 3), and Dean responded by filing an amended complaint (Complaint). About a month later, Pacific Bellwether filed the motion for summary judgment under review here.

II. JURISDICTION

This Court has jurisdiction pursuant to 28 U.S.C. § 1331 (federal question) and § 1367 (supplemental).

III. STANDARD

On a Rule 56 motion for summary judgment, “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). In considering the motion, “[t]he court must not weigh the evidence or determine the truth of the matter but only determine whether there is a genuine issue for trial.” Crane v. Conoco, Inc., 41 F.3d 547, 549–50 (9th Cir.1994). Additionally, it must view the evidence “in the light most favorable to the opposing party.” Mourning v. Family Pubs. Serv., Inc., 411 U.S. 356, 382, 93 S.Ct. 1652, 36 L.Ed.2d 318 (1973) (internal quotation marks omitted).

The moving party bears the initial burden of identifying “particular parts of materials in the record” that “demonstrate the absence of a genuine issue of material fact.” Fed.R.Civ.P. 56(c)(1); Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). “When the moving party also bears the burden of persuasion at trial, ... it must show that ‘the evidence is so powerful that no reasonable jury would be free to disbelieve it.’ ” Shakur v. Schriro, 514 F.3d 878, 890 (9th Cir.2008). If the moving party meets this burden, the non-moving party must then do similarly, except to demonstrate that a genuine issue of material fact exists. Fed.R.Civ.P. 56(c)(1); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

IV. DISCUSSION

The Court analyzes two questions: Can Dean bring FLSA overtime and minimum wage claims against Pacific Bellwether, and can she bring a FLSA retaliation claim?

A. Overtime & Minimum Wage Claims

To bring a FLSA overtime or minimum wage claim, FLSA must cover either the employee's activities or the employer's activities. That is, there must be either individual coverage or enterprise coverage. See Chao v. A–One Med. Servs., Inc., 346 F.3d 908, 914 (9th Cir.2003), cert. denied,541 U.S. 1030, 124 S.Ct. 2095, 158 L.Ed.2d 710 (2004); see also29 U.S.C. §§ 206(a), 207(a). The former focuses on the employee's activities; the latter on the employer and all its employees. Lea A. Schneider & J. Larry Stine, 1 Wage and Hour Law § 4:1.

Currently, the parties dispute both bases of coverage. With individual coverage, they disagree on whether it is satisfied. And with enterprise coverage, they disagree on whether Dean can undergo discovery on this issue. Each issue is addressed in turn.

1. Individual Coverage

Individual coverage for FLSA overtime and minimum wage claims require that the employee is “engaged in commerce or in the production of goods for commerce....” See29 U.S.C. §§ 206(a), 207(a). For brevity, the Court refers to this as the commerce requirement.

To satisfy this requirement, the “employee ... must be directly participating in the actual movement of persons or things in interstate commerce by (i) working for an instrumentality of interstate commerce, e.g., transportation or communication industry employees, or (ii) regularly using the instrumentalities of interstate commerce in his work, e.g., regular and recurrent use of interstate telephone, telegraph, mails, or travel.” Thorne v. All Restoration Servs., Inc., 448 F.3d 1264, 1266 (11th Cir.2006); Reagor v. Okmulgee Cnty. Fam. Res. Ctr., 501 Fed.Appx. 805, 809 (10th Cir.2012); see also McLeod v. Threlkeld, 319 U.S. 491, 493–98, 63 S.Ct. 1248, 87 L.Ed. 1538 (1943). This strict requirement effects the legislative “purpose to leave local business to the protection of the states.” Walling v. Jacksonville Paper Co., 317 U.S. 564, 572, 63 S.Ct. 332, 87 L.Ed. 460 (1943); Mitchell v. Lublin, McGaughy & Assocs., 358 U.S. 207, 211, 79 S.Ct. 260, 3 L.Ed.2d 243 (1959) (“Congress, by excluding from the Act's coverage employees whose activities merely ‘affect commerce,’ indicated its intent not to make the scope of the Act coextensive with its power to regulate commerce.”); Thorne, 448 F.3d at 1266.

This doctrine has been applied within the context of foodservice. A cook—possessing the duties of cooking and caretaking—does not meet the commerce requirement. McLeod, 319 U.S. at 493–94, 63 S.Ct. 1248; see also Martinez v. Palace, 414 Fed.Appx. 243, 245 (11th Cir.2011) (per curiam). This is true even where he cooks for those engaging in interstate commerce, such as railroad repairmen, seeMcLeod, 319 U.S. at 493–94, 63 S.Ct. 1248; Martinez, 414 Fed.Appx. at 245, or foreign travelers, Joseph v. Nichell's Caribbean Cuisine, Inc., 862 F.Supp.2d 1309, 1314 (S.D.Fla.2012) ( “Whether the customers Plaintiff served at Defendant's restaurant were local or from out-of-state is immaterial to establishing individual FLSA coverage.”); Russell v. Continental Rest., Inc., 430 F.Supp.2d 521, 525 (D.Md.2006) (same conclusion); cf. Thorne, 448 F.3d at 1267 (distinguishing between goods that move “across state lines for sale”—which is commerce—and “goods that previously moved in interstate commerce for intrastate use,” which is not commerce); 29 U.S.C. § 203(i) (same).

Dean is a restaurant cook, and her employer's customers at least sometimes include foreign travelers. ( See ECF No. 1–3 at 1, 4 (hereinafter “Dean Declaration”).) If that were all to this case, we could stop here, as she would not have met the commerce requirement.

But there's more. Dean also develops recipes by downloading them off foodnetwork.com and similar websites.¹ ( See id. at 3; see generally ECF No. 11–5.) Does this use of the Internet satisfy the commerce requirement?

The Commerce requirement can be divided into two substantive components. The first is quantitative. The employee must regularly and recurrently use the Internet or other interstate communication device. See Thorne, 448 F.3d at 1266.²The second component is qualitative; the activity must “constitut[e] interstate commerce, not merely affect[ ] interstate commerce.” See id.

So the question here is two-fold: Is Dean's use of the Internet regular and recurrent, and are Dean's activities on the Internet—searching and downloading recipes off foodnetwork.com and similar sites—qualitatively sufficient to constitute commerce? The first question is easily disposed of on summary judgment. Regular and recurrent use does not actually require much use; five independent uses annually may suffice. See Boekemeier v. Fourth Universalist Soc'y in the City of New York, 86 F.Supp.2d 280, 283, 287–88 (S.D.N.Y.2000) (averaging between one and six purchases of supplies from out-of-state vendors for six consecutive years satisfies commerce requirement). With the standard of review, Dean satisfies the regular and recurrent use requirement. Using the Internet to develop recipes was “part of [her] work,” and her main area of this “development was the daily specials.” ( See Dean Declaration at 1–3.) This suggests fairly frequent use of the Internet to download recipes.

The qualitative question is far harder. As already said, the activity must “constitut[e] interstate...