Solie v. Health Care@Home LLC

Decision Date10 April 2020
Docket NumberNo. CV-19-05399-PHX-JJT,CV-19-05399-PHX-JJT
PartiesAmanda V. Solie, et al., Plaintiffs, v. Health Care@Home LLC, et al., Defendants.
CourtU.S. District Court — District of Arizona
ORDER

At issue is Defendants Steve Cohn and Lillian Focken's Motion to Dismiss Second Amended Complaint (Doc. 39 Ex. A, "Mot."),1 to which Plaintiffs filed a Response (Doc. 38, "Resp.") and Defendants filed a Reply (Doc. 41, "Reply"). Defendants Health Care@Home, LLC, Mark Forrest Cohn, and Susan Cohn (originally named as Jane Doe Cohn) joined the Motion (Doc. 28.) This Order refers to Steve Cohn, Focken, Mark Cohn, and Health Care@Home as "Moving Defendants."2 However, the Court will not evaluateon behalf of Mark Cohn or the Company the arguments made by Steve Cohn and Focken that require an analysis of individualized facts or allegations. For the reasons that follow, the Court grants in part and denies in part Moving Defendants' Motion.

I. BACKGROUND

Plaintiffs are four individuals who worked for Health Care@Home, LLC (the "Company") at different times and in different positions. Although each Plaintiff's factual allegations differ slightly, the essence of the Second Amended Complaint (Doc. 21 ("SAC")) is that the Company made untimely or incomplete payment of wages throughout their employment and breached promises related to the same.

According to the Complaint, Steve Cohn was the manager and only member of the Company between June 2013 and April 14, 2017. (SAC ¶¶ 23-24; see SAC Exs. A & B.) From April 14, 2017 through the remaining time period relevant to the SAC, Mark Cohn was listed as a member and manager of the Company, and Focken was listed as a member. (SAC ¶¶ 24-26; see SAC Exs. B, C & D.) Nonmoving Defendants were also all added as members or managers on or after April 14, 2017.

Facts Specific to Amanda Solie

Plaintiff Amanda Solie was employed as Director of Personal Care and Support Services for the Company from November 7, 2017 through January 1, 2018. (SAC ¶ 27.) Her salary was $80,000 and the Company also agreed to make particular reimbursements associated with her employment. (SAC ¶¶ 28-29.) "On or around December 4, 2017, the Company began making untimely or incomplete payment of wages and expense reimbursements to Solie" and "eventually" stopped paying her altogether. (SAC ¶¶ 31-32.) She was terminated on January 3, 2018. (SAC ¶ 33.) Solie filed a Complaint with the Labor Department of the Industrial Commission of Arizona, who eventually awarded her unpaid wages in the amount of $3,845.06, and trebled the amount to $11,535.18 plus 4.25% interest if Company failed to pay within 10 days of entry of final judgment. (SAC ¶¶ 34-36). The Company paid nothing on the judgment. (SAC ¶ 38). Solie alleges she "was not paid either minimum wages (FLSA; Minimum Wage Act) or overtime wages (FLSA only) for a total of 96 hours during the works weeks spanning November 7, 2017 through January 3, 2018, and was not reimbursed costs of $152.90." (SAC ¶ 45.)

Facts Specific to Roseanne Barrera

Plaintiff Roseanne Barrera was employed as Clinical Manager/Supervisor of the Company from March 15, 2017 through August 11, 2017, at a salary of $96,000. (SAC ¶¶ 46-47.) In June 2017, the Company started making incomplete or late wage payments to Barrera. (SAC ¶ 48.) When she demanded payment for her unpaid wages, the Company—on two occasions—provided her with checks that were later dishonored due to insufficient funds. (SAC ¶ 49.) Barrera eventually resigned in August 2017 after the Company stopped paying her wages altogether. (SAC ¶ 50.) At that time, the Company agreed to pay Barrera both her unpaid wages and for 53.32 hours of accumulated unpaid paid time off; the Company never paid either. (SAC ¶¶ 51-52.) On November 2, 2017, Barrera and the Company entered into a "Settlement Agreement" in which the Company agreed to pay Barrera $15,000 in a series of monthly payments. (SAC ¶ 53; see Ex. H.) The Company made only a partial payment of $1000 for the first payment, and never paid anything else. (SAC ¶¶ 54-55.) Barrera alleges she "was not paid either minimum wages (FLSA; Minimum Wage Act) or overtime wages (FLSA only) during the work weeks beginning on June 20, 2017 and continuing through the entire duration of her employment with the Company." (SAC ¶ 63.)

Facts Specific to Joseph Kovach

Plaintiff Joseph Kovach was an Account Executive for the Company from May 27, 2017 through August 11, 2017 at a salary of $108,000. (SAC ¶ 66-67.) The Company began making untimely or incomplete wage payments around June 2017 and eventually stopped paying Kovach his wages altogether. (SAC ¶¶ 69-70.) After Kovach was terminated from his position as Account Executive on August 11, the Company asked if he would provide services as an Occupational Therapist Assistant at a rate of $50 per visit.(SAC ¶¶ 66-67.) Kovach completed five visits in this role but was never paid for any of them. (SAC ¶ 68.) Kovach alleges he "was not paid either minimum wages (FLSA; Minimum Wage Act) or overtime wages (FLSA only) during the work weeks beginning in June of 2017 through August 2, 2017" and that he is "entitled to reimbursement for work luncheons totaling $978.98 and $515.05 in reimbursement for printed collateral related to his position with the Company." (SAC ¶ 75.)

Facts Specific to Alex Hatchett

Plaintiff Alex Hatchett worked as an Occupational Therapist for the Company from January 2017 to October 2017. (SAC ¶ 76.) His rate of pay was $120 per visit for visits outside the East Valley and $90 per visit within the East Valley. (SAC ¶ 77.) The Company began making untimely or incomplete wage payments in March 2017 and eventually stopped paying Hatchett his wages altogether. (SAC ¶¶ 78-79.) Hatchett alleges "he was not paid either minimum wages (FLSA; Minimum Wage Act) or overtime wages (FLSA only) during the work weeks spanning January of 2017 through October of 2017." (SAC ¶ 85.)

Facts Relevant to All Plaintiffs

In addition to the above factual allegations, the SAC alleges Plaintiffs' paychecks came from different sources, including company checks, direct deposit, and sometimes third-party vendors. (SAC ¶ 87.) After the Company failed to pay their wages, Plaintiffs made demands on the Company but were still never paid. (SAC ¶ 93.) "Mark Cohn told each Plaintiff numerous times both verbally and in writing that both he and the Company would pay all their wages." (SAC ¶ 94.) He made these promises until February 2018, at which time he ceased all communication with Plaintiffs. (SAC ¶ 96.)

II. LEGAL STANDARD

Federal Rule of Civil Procedure 12(b)(6) is designed to "test[] the legal sufficiency of a claim." Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). A dismissal under Rule 12(b)(6) for failure to state a claim can be based on either (1) the lack of a cognizable legal theory or (2) insufficient facts to support a cognizable legal claim. Balistreri v. PacificaPolice Dep't, 901 F.2d 696, 699 (9th Cir. 1990). When analyzing a complaint under Rule 12(b)(6), the well-pled factual allegations are taken as true and construed in the light most favorable to the nonmoving party. Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009). Legal conclusions couched as factual allegations are not entitled to the assumption of truth, Ashcroft v. Iqbal, 556 U.S. 662, 680 (2009), and therefore are insufficient to defeat a motion to dismiss for failure to state a claim, In re Cutera Sec. Litig., 610 F.3d 1103, 1108 (9th Cir. 2010). On a Rule 12(b)(6) motion, Rule 8(a) governs and requires that, to avoid dismissal of a claim, Plaintiffs must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

III. ANALYSIS

Plaintiffs filed this action in state court on August 13, 2019, and filed their First Amended Complaint ("FAC") on September 6, 2019. Moving Defendants removed the action to this Court (Doc. 1) and filed a motion to dismiss (Doc. 20). Rather than respond to that motion, Plaintiffs filed the SAC later that same day. (Doc. 21.)

The SAC alleges 10 counts total, with each Plaintiff alleging each count against different Defendants, depending on who was a member of the Company during the alleged violations.3 The following counts are alleged: (1) failure to pay overtime wages under the Fair Labor Standards Act ("FLSA"); (2) failure to pay minimum wages under the FLSA; (3) failure to pay wages under the Arizona Wage Act ("AWA"); (4) failure to pay minimum wages under the Arizona Minimum Wage Act ("AMWA"); (5) breach of contract related to Mark Cohn's promises to pay Plaintiffs' wages; (6) breach of contract related to Barrera's Settlement Agreement; (7) breach of implied duty of good faith and fair dealing; (8) negligent misrepresentation; (9) unjust enrichment; and (10) alter ego. Moving Defendants move to dismiss all counts.

A. Counts 3 & 7: Failure to Pay Wages under the AWA & Breach of Implied Duty of Good Faith and Fair Dealing

In their Response to Moving Defendants' present Motion, Plaintiffs ask the Court to dismiss Counts 3 and 7 without prejudice. (Resp. at 2 n.4.) Moving Defendants respond that these counts should be dismissed with prejudice. The Court agrees with Moving Defendants.

Plaintiffs have had ample opportunity to substantively respond to Moving Defendants' arguments regarding Counts 3 and 7 and have not done so. Counsel for Moving Defendants certify that on October 19, 2019, they notified Plaintiffs via letter of the defects in the FAC as required by LRCiv 12(c). (Doc. 20 at 1 n.1.) Moving Defendants later filed their first motion to dismiss and, as noted above, Plaintiffs then unilaterally filed the SAC instead of responding to that motion. (See Docs. 20, 21.) Moving Defendants certify that before they filed the present Motion, they again notified Plaintiffs that the SAC failed to address the issues or cure the defects raised in their October 19 letter and the first motion to dismiss. (Mot. at 2 n.1.)

...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT