Llanes v. Zalewski

• Decision Date: 04 October 2019
• Docket Number: Case No. 3:18-cv-00267-SB
• Citation: 412 F.Supp.3d 1266
• Parties: Jesusa LLANES, Plaintiff, v. Andrea ZALEWSKI, Silver Ridge Adult Foster Care Home, LLC, Defendants.
• Court: U.S. District Court — District of Oregon

412 F.Supp.3d 1266

Jesusa LLANES, Plaintiff,

v.Andrea ZALEWSKI, Silver Ridge Adult Foster Care Home, LLC, Defendants.

Case No. 3:18-cv-00267-SB

United States District Court, D. Oregon.

Signed October 4, 2019

Jon M. Egan, Jon M. Egan, P.C., Lake Oswego, OR, for Plaintiff.

Jeffrey M. Edelson, Vivek A. Kothari, Katherine M. Acosta, Markowitz Herbold PC, Portland, OR, for Defendants.

OPINION AND ORDER

BECKERMAN, U.S. Magistrate Judge.

Plaintiff Jesusa Llanes ("Llanes") filed this case against Defendants Andrea Zalewski ("Zalewski") and Silver Ridge Adult Foster Care Home, LLC ("Silver Ridge") (together, "Defendants"), alleging that Defendants violated the minimum and overtime wage requirements of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 216. (ECF No. 1.) In response, Defendants asserted state law counterclaims for quantum meruit, conversion, and unjust enrichment. (ECF No. 21.) Llanes filed an answer to Defendants' counterclaims, asserting her own state law counterclaims for wrongful divestment of possession contrary to legal estate interest, conversion, and intentional infliction of emotional distress. (ECF No. 43.)

Pending before the Court are the parties' cross-motions for summary judgment. (ECF Nos. 46, 50.) Defendants have also moved to dismiss Llanes' counterclaims for lack of subject matter jurisdiction. (ECF No. 55.) The Court has jurisdiction over this case under 28 U.S.C. §§ 1331 and 1367, and all parties have consented to the jurisdiction of a U.S. Magistrate Judge under 28 U.S.C. § 636(c). For the following reasons, the Court grants Defendants' motion for summary judgment, denies Llanes' motion for summary judgment, and denies as moot Defendants' motion to dismiss.

BACKGROUND¹

Silver Ridge is a Class Two adult foster care home that provides room and board to its five residents. (Declaration of Andrea Zalewski, Apr. 30, 2019 ("Zalewski Decl.") ¶¶ 2-4.) The residents are all over sixty-five years old and have medical or psychological conditions, including schizophrenia

, insomnia, mood disorders, and depression. (Declaration of Jesusa Llanes, Apr. 30, 2019 ("Llanes Decl.") ¶ 8.) Oregon law does not require a Class Two facility to employ medical professionals. (Zalewski Decl. ¶ 4.)

In 2014, Defendants hired Llanes as a resident care manager. (Llanes Decl. ¶ 6.) In that role, Llanes cared for Silver Ridge's residents on a twenty-four hour basis. (Llanes Decl. ¶ 7.) For example, Llanes prepared and served meals, tracked and administered medication, maintained medication administration records, coordinated care with outside providers, monitored and enforced house policies, and performed housework. (Llanes Decl. ¶ 7.) Llanes did not diagnose the residents or prescribe medicine. (Declaration of Katherine Acosta, Apr. 30, 2019 ("Acosta Decl.") ¶ 2, Ex. 1 (Llanes Dep. 58:5-13, Feb. 20, 2019 ("Llanes Dep.")).)

Llanes also helped the residents with grooming and general hygiene, maintained peace between the residents, assisted the residents with cash or account management, and provided first-aid care. (Llanes Decl. ¶ 7.) On a weekly basis, Llanes purchased groceries and medication, received and distributed mail and food deliveries to the residents, and received and processed goods that Defendants ordered online. (Llanes Decl. ¶ 7.) Llanes purchased food and medication from local stores and pharmacies, and did not order goods online. (Llanes Dep. 47:19-48:6; 49:11-14; 69:5-70:6; 70:21-71:5.)

Pursuant to an employment agreement, Llanes received a $3,000 monthly salary, as well as room and board. (Acosta Decl. ¶ 2, Ex. 3.) Throughout her tenure at Silver Ridge, Llanes worked seventy-five hours per week. (Llanes Decl. ¶ 11.) She did not receive overtime pay. (Llanes Decl. ¶ 11.)

In March 2017, Llanes informed Zalewski that she was engaged, and asked if her fiancé could live with her at Silver Ridge. (Llanes Decl. ¶ 13.) Zalewski said yes. (Llanes Decl. ¶ 13.) Seven months later, Zalewski terminated Llanes' employment. (Llanes Decl. ¶ 14.) Defendants changed the locks and left Llanes' belongings in the driveway. (Llanes Decl. ¶ 14.)

DISCUSSION

I. STANDARD OF REVIEW

Summary judgment is appropriate if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a). On a motion for summary judgment, courts must view the facts in the light most favorable to the non-moving party, and draw all reasonable inferences in favor of that party. Porter v. Cal. Dep't of Corr. , 419 F.3d 885, 891 (9th Cir. 2005) (citations omitted). The court does not assess the credibility of witnesses, weigh evidence, or determine the truth of matters in dispute.

Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.’ " Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citation omitted).

II. ANALYSIS

A. FLSA Claims

Defendants ask the Court to grant summary judgment on Llanes' FLSA claims because she does not qualify for FLSA coverage. (Def.'s Mot. at 8.)

FLSA applies to employees who are (1) "engaged in commerce or in the production of goods for commerce" (individual coverage) or (2) "employed in an enterprise engaged in commerce or in the production of goods for commerce" (enterprise coverage). 29 U.S.C. §§ 206(a), 207(a)(1). The "employee has the burden to show that there is coverage, whether individual or enterprise." Mendoza v. Detail Sols., LLC , 911 F. Supp. 2d 433, 438-39 (N.D. Tex. 2012) (citing D.A. Schulte, Inc. v. Gangi , 328 U.S. 108, 120, 66 S.Ct. 925, 90 L.Ed. 1114 (1946) ).

1. Individual Coverage

FLSA applies to individual employees "engaged in commerce." 29 U.S.C. § 206(a). The Supreme Court has made clear that an employee does not "engage in commerce" if the employee's activities merely "affect or indirectly relate to interstate commerce[.]" McLeod v. Threlkeld , 319 U.S. 491, 497, 63 S.Ct. 1248, 87 L.Ed. 1538 (1943). Instead, an employee engages in commerce where her activities "are actually in or so closely related to the movement of the commerce as to be a part of it." Id. ; see also Pilkington v. Abuela's Cocina LLC , No. CV-18-00281-TUC-RCC, 2019 WL 1077878, at *1 (D. Ariz. Mar. 7, 2019) ("The test is whether the work [of the employee] is so directly and vitally related to the functioning of an instrumentality or facility of interstate commerce as to be, in practical effect, a part of it, rather than isolated, local activity.") (quoting Mitchell v. C.W. Vollmer & Co. , 349 U.S. 427, 429, 75 S.Ct. 860, 99 L.Ed. 1196 (1955) ).² In other words, an employee engages in commerce under FLSA if she "work[s] for an instrumentality of interstate commerce," or regularly uses instrumentalities of interstate commerce in her work. Thorne v. All Restoration Servs., Inc. , 448 F.3d 1264, 1266 (11th Cir. 2006) (citations omitted).

Defendants argue that FLSA's individual coverage does not apply to Llanes because she did not regularly engage in interstate commerce. (Def.'s Mot. at 8.) Llanes responds that she qualifies for individual coverage because she performed the following tasks on a weekly basis: (1) buying food and medication from a local store or pharmacy that originated out of state; (2) receiving and distributing interstate mail; and (3) receiving and processing interstate deliveries of food and household goods that Defendants ordered online. (Pl.'s Mot. at 8.) To support her argument that individual coverage exists here, Llanes argues that courts have adopted the Department of Labor's position that FLSA covers employees who regularly handle interstate mail and goods "from or destined for out-of-state sources." (Pl.'s Mot. at 7.)

Contrary to Llanes' argument, courts have consistently held that an employee cannot establish individual coverage simply by buying or handling goods locally, even if the goods originated out of state. See, e.g. , Josendis v. Wall to Wall Residence Repairs, Inc. , 662 F.3d 1292, 1316 (11th Cir. 2011) (holding that individual coverage did not apply where the employer "had purchased or leased vehicles that had, at some point, moved in interstate commerce and equipped those vehicles with GPS units that took parts ordered over the internet from other states" because "the point of origin of these vehicles ... is irrelevant to the issue of individual coverage"); Thorne , 448 F.3d at 1267 ("Courts distinguish between merchants who bring commerce across state lines for sale and the ultimate consumer, who merely purchases goods that previously moved in interstate commerce for intrastate use. Therefore, a customer who purchases an item from Home Depot is not engaged in commerce even if Home Depot previously purchased it from out-of-state wholesalers."); Barr v. Custom Design & Installation, Inc. , Case No. 3:13-cv-04925-M, 2015 WL 1255870, at *4 (N.D. Tex. Mar. 19, 2015) ("This Court concludes that an employee engages in purely local activity when she purchases goods from a local retail store to contribute to the operations of an intrastate business, even though the goods previously traveled interstate."); Yan v. Gen. Pot, Inc. , 78 F. Supp. 3d 997, 1003 (N.D. Cal. 2015) (holding that the employee did not engage in interstate commerce where he "handled food that was moved interstate prior to arriving at the restaurant" and the food did not "later return to interstate commerce").³

Similarly, an employee engages in purely local activity if she receives and handles mail that has moved in interstate commerce. See Westley v. Love Pet Grooming Salon, Inc. , No. 8:18-cv-172-T-24 TGW, 2019 WL 249716, at *4 (M.D. Fla. Jan. 17, 2019) (finding that handling and using materials that had once moved in interstate commerce does not support individual coverage because "individual coverage is not affected by the handling of such...