-OP Jess Batiz v. American Commercial Security Services (ACSS) et al, No. 5:2006cv00566 - Document 266 (C.D. Cal. 2011)

Court Description: ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT IN PART by Judge Virginia A. Phillips: For the foregoing reasons, the Court finds Defendants are entitled to summary judgment on Gordon Narayan's claims. As Narayan's claims are ba rred by the FLSA statute of limitations, the Court DISMISSES his claims WITH PREJUDICE. The Court also finds Defendants are entitled to summary adjudication on Nabinett's claims, i.e., Defendants have established conclusively Nabinett worked for Defendants until September 2006. Plaintiffs may not assert otherwise at trial or in future motions. 238 (am)

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-OP Jess Batiz v. American Commercial Security Services (ACSS) et al Doc. 266 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 JESS BATIZ, et al., 12 13 14 15 16 17 18 ) ) Plaintiffs, ) ) v. ) ) AMERICAN COMMERCIAL ) SECURITY SERVICES, et. ) al., ) ) Defendants. ) ________________________ ) ) ) ) Case No. EDCV 06-00566VAP(OPx) ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT IN PART 19 Before the Court is a "Motion for Summary Judgment of 20 the Claims of Plaintiff Gordon Narayan and Partial 21 Summary Judgment as to Relevant Dates Worked by Plaintiff 22 Nicole Nabinett" ("Motion") filed by Defendants American 23 Continental Security Services, ABM Industries, Inc., ABM 24 Security Services, and Security Services of America 25 (collectively, "Defendants"). After consideration of the 26 papers in support of, and opposition to, the Motion, and 27 arguments advanced at the March 7, 2011, hearing, the 28 Court GRANTS Defendants' Motion in part. Dockets.Justia.com I. 1 BACKGROUND 2 A. Procedural History 3 The parties are familiar with the factual and 4 procedural history of this action, and the Court need not 5 repeat it here, with limited exception.1 On January 17, 6 2008, Plaintiffs filed their Fourth Amended Complaint 7 ("FAC"), identifying Nicole Nabinett ("Nabinett") and 8 Gordon Narayan ("Narayan") as named Plaintiffs. (See 9 Doc. No. 108 (Fourth Am. Compl.) at ¶¶ 27, 30.) On 10 January 17, 2008, the Court also conditionally certified 11 a nationwide class consisting of "[a]ll current or former 12 nonexempt employees of [Defendants], who . . . worked 13 more than forty hours in one work week and failed to 14 receive overtime compensation . . . ." (Doc. No. 106 15 ("Order Granting in Part and Den. in Part Pls.' Mot. for 16 Conditional Class Certification") at 16.) 17 18 On September 22, 2010, the Court decertified the 19 class on fairness and procedural grounds, due to 20 Plaintiffs' lack of admissible class-wide damages 21 evidence. (See Sept. 22, 2010, Order at 8-10.)2 In the 22 September 22, 2010, Order, the Court dismissed the opt-in 23 24 1 See, e.g., Doc. No. 225 (Sept. 22, 2010, Order) at 2-5 (describing the factual and procedural history in 25 more detail). 26 2 Plaintiffs sought permission to file an interlocutory appeal of the September 22, 2010, Order, 27 which the Court denied on February 24, 2011. (See Doc. 28 Nos. 225, 253.) 2 1 Plaintiffs without prejudice, but permitted the named 2 Plaintiffs, including Nabinett and Narayan, to proceed in 3 their individual capacities. (Id. at 10.) 4 5 On September 28, 2010, the Court held a status 6 conference, and ordered, inter alia, that: (1) Plaintiffs 7 could propound additional discovery as to the named 8 Plaintiffs, which must be completed by no later than 9 January 14, 2011; and (2) Plaintiffs and Defendants could 10 file motions for summary judgment no later than January 11 31, 2011, with oppositions filed no later than February 12 14, 2011 and replies, if any, filed no later than 13 February 22, 2011. (Doc. No. 229 ("October 12, 2010, 14 Order") at 2.) 15 16 Defendants filed the instant Motion on January 31, 17 2011, attaching the following documents in support of 18 their Motion: 19 1. 20 21 Declaration of Lynn Gilbert ("Gilbert Declaration"); 2. Printout of an electronic mail message ("e- 22 mail") conversation between Kristine Curtiss and 23 Mark Smith, dated October 26, 2004 ("Ex. A"); 24 3. 25 26 27 Payroll Summary Chart for Gordon Narayan ("Ex. B"); 4. Printout capturing a screen-shot of Narayan's Employee Master File ("Ex. C"); 28 3 1 5. 2 3 tax year 2004 ("Ex. D"); 6. 4 5 7. 10 Printout capturing a screen-shot of Nabinett's Employee Master File ("Ex. F"); 8. 8 9 Printout capturing a screen-shot of an Employee Master Inquiry for Nabinett ("Ex. E"); 6 7 Narayan's Internal Revenue Service Form W-2 for Nabinett's Internal Revenue Service Form W-2 for tax year 2005 ("Ex. G"); 9. Nabinett's Internal Revenue Service Form W-2 for tax year 2006 ("Ex. H"); 11 10. Payroll Detail Report for Nabinett ("Ex. I") 12 11. Declaration of Dominic Messiha ("Messiha 13 Declaration"); 14 12. Certified Deposition Transcript for December 16, 15 2010, Deposition of Gordon Narayan ("Narayan 16 Depo."); 17 13. Certified Deposition Transcript for December 14, 18 2010, Deposition of Nicole Nabinett ("Nabinett 19 Depo."); 20 21 22 23 14. Declaration of Courtney Hobson ("Hobson Decl."); and 15. Defendants' Proposed Statement of Uncontroverted Facts and Conclusions of Law ("SUF"). 24 25 On February 14, 2011, Plaintiffs filed their Opposition 26 to Defendants' Motion, and attached the following 27 documents: 28 4 1 1. 2 3 ("SGI"); 2. 4 5 Objections to Defendants' Evidence ("Plaintiffs' Objections"); 3. 6 7 Statement of Genuine Issues of Material Fact Declaration of André Jardini ("Jardini Declaration"); 4. Plaintiffs' Request for Production of Documents, 8 Set Two, attached as Exhibit 1 to the Jardini 9 Declaration ("Plaintiffs' RFP"); 10 5. Declaration of K.L. Myles ("Myles Declaration"); 11 6. Transcript Portions from the September 28, 2010, 12 Status Conference ("September 28 Hearing 13 Transcript"); 14 7. 15 16 ("October 12 Order"); 8. 17 18 Copy of the Court's October 12, 2010, Order Letter to Courtney Hobson from André Jardini, dated November 17, 2010 ("Ex. 3"); 9. Printout of an e-mail from K.L. Myles to 19 Courtney Hobson, dated November 30, 2010 ("Ex. 20 4"); 21 22 23 24 25 26 10. Declaration of Gordon Naryan, dated July 31, 2007 ("Narayan Declaration"); 11. Survey completed by Nicole Nabinett, dated March 9, 2010 ("Ex. 6"); 12. Deposition Transcript for December 16, 2010, Deposition of Gordon Narayan ("Narayan Depo."); 27 28 5 1 13. Additional portions of the Deposition Transcript 2 for December 16, 2010, Deposition of Gordon 3 Narayan ("Narayan Depo."); 4 14. Deposition Transcript for December 14, 2010, 5 Deposition of Nicole Nabinett ("Nabinett 6 Depo."); 7 15. Additional portions of the Deposition Transcript 8 for December 14, 2010, Deposition of Nicole 9 Nabinett ("Nabinett Depo."); 10 16. Employment records, personnel documents, and 11 payroll records produced by Defendants on 12 January 26 and 28, 2011, for Narayan ("Ex. 11"); 13 17. Employment records, personnel documents, and 14 payroll records produced by Defendants on 15 January 26 2011, for Nabinett ("Ex. 12"); 16 17 18 19 18. Declaration of Grace Corsini ("Corsini Declaration"); and 19. Declaration of Nicole Nabinett ("Nabinett Declaration"). 20 21 On February 22, 2011, Defendants filed their "Response in 22 Support of Motion" ("Reply"), and attached the 23 "Declaration of Courtney Hobson in Support of Defendants' 24 Reply" ("Hobson Reply Declaration"). 25 26 27 28 6 1 B. Evidentiary Issues 2 Before setting forth the uncontroverted facts in this 3 action, the Court examines the admissibility of the 4 evidence offered by both sides in support of, and 5 opposition to, the Motion. "A trial court can only 6 consider admissible evidence in ruling on a motion for 7 summary judgment." Orr v. Bank of America, 285 F.3d 764, 8 773 (9th Cir. 2002); In re Oracle Corp. Sec. Litig., 627 9 F.3d 376, 385 (9th Cir. 2010) ("A district court's ruling 10 on a motion for summary judgment may only be based on 11 admissible evidence."); Hollingsworth Solderless Terminal 12 Co. v. Turley 622 F.2d 1324, 1335 n. 9 (9th Cir. 1980); 13 see also Fed. R. Civ. Proc. 56(c)(4) ("An affidavit or 14 declaration used to support or oppose a motion must . . . 15 set out facts that would be admissible in evidence . . . 16 ."). The party seeking admission of a piece of evidence 17 bears the burden of demonstrating its admissibility. 18 Oracle, 627 F.3d at 385. 19 20 1. Exhibits B, C, E, F, and I 21 Here, Defendants do not satisfy their burden of 22 demonstrating the admissibility of Exhibits B, C, E, F, 23 and I. Defendants offer these Exhibits for the truth of 24 their contents, rendering the Exhibits hearsay. 25 R. Evid. 801(c). See Fed. Defendants appear to assert the 26 Exhibits are subject to the business records exception 27 under Federal Rule of Evidence 803(6). 28 7 1 2 3 4 5 Under Rule 803(6), for a memorandum or record to be admissible as a business record, it must be (1) made by a regularly conducted business activity, (2) kept in the regular course of that business, (3) the regular practice of that business to make the memorandum, (4) and made by a person with knowledge or from information transmitted by a person with knowledge. 6 Paddack v. Dave Christensen, Inc., 745 F.2d 1254, 1258 7 (9th Cir. 1984) (internal quotations omitted) (citing 8 Clark v. City of Los Angeles, 650 F.2d 1033, 1036-37 (9th 9 Cir. 1981)). Moreover, the writing must be made "by a 10 person with knowledge at or near the time of the incident 11 recorded." Sea-Land Serv., Inc. v. Lozen Intern., LLC., 12 285 F.3d 808, 819 (9th Cir. 2002) (citing United States 13 v. Miller, 771 F.2d 1219, 1237 (9th Cir. 1985)). 14 15 In support of Exhibit B's admission, the Gilbert 16 Declaration states only that Ms. Gilbert is familiar with 17 Defendants' payroll record keeping system, and that 18 Exhibit B represents payroll summaries for Narayan for 19 the years 2003 and 2004. (Gilbert Decl. ¶ 6.) The 20 Gilbert Declaration does not state whether it is the 21 regular practice of the business to generate the 22 summaries, or that Exhibit B was made by a person with 23 knowledge "at or near the time of the incident recorded." 24 Sea-Land, 285 F.3d at 819. Thus, Defendants have not 25 demonstrated that Exhibit B is a business record under 26 Rule 803(6). 27 28 8 1 Similarly, Defendants have not established that 2 Exhibits C, E, and F are business records under Rule 3 803(6). The Gilbert Declaration states that "[i]n the 4 ordinary course of business, [Defendants] maintain 5 software programs that contain master data pertaining to 6 employees." (Gilbert Decl. ¶ 7.) The Gilbert 7 Declaration does not state, however, whether the data is 8 entered by a person with knowledge at or near the time of 9 the event recorded. Sea-Land, 285 F.3d at 819. 10 Accordingly, Exhibits C, E, and F do not satisfy the 11 business records exception under Rule 803(6). 12 13 Finally, like Exhibit B, the Gilbert Declaration does 14 not support sufficiently Exhibit I's admissibility, as 15 the declaration does not state whether it is the regular 16 practice of the business to generate the summaries, or 17 that Exhibit I was made by a person with knowledge at or 18 near the time of the incident recorded. Accordingly, as 19 with Exhibit B, Defendants have not satisfied their 20 burden of demonstrating Exhibit I is a business record 21 under Rule 803(6). 22 23 2. Exhibits D, G, and H 24 Plaintiffs object to admission of Exhibits D, G, and 25 H, contending: (1) "[t]he evidence is prejudicial under 26 FRE 403;" (2) "[D]efendants cannot reply [sic] on 27 documents not previously identified or produced during 28 9 1 discovery;" and (3) "[D]efendants have failed to provide 2 adequate explanation for [the] delayed disclosure, which 3 has prejudiced [P]laintiffs." 4 8, 9.) (Pls.' Objections at 4, 5, The Court overrules Plaintiffs' objections. 5 6 7 403. First, Plaintiffs misstate the standard under Rule The standard under Rule 403 is not whether 8 "evidence is prejudicial," as Plaintiffs contend, but 9 rather whether the evidence's "probative value is 10 substantially outweighed by the danger of unfair 11 prejudice." Fed. R. Evid. 403 (emphases added). Here, 12 evidence demonstrating the dates Narayan and Nabinett 13 worked is highly probative as to whether Narayan's and 14 Nabinett's claims were made timely, or fall outside the 15 statute of limitations. Moreover, the unfair prejudice 16 here is minimal as Narayan's 2004 W-2 form, and 17 Nabinett's 2005 and 2006 W-2 forms are documents that 18 Nabinett and Narayan would have received before they 19 joined the action in January 2008. See 26 U.S.C. § 6051 20 (requiring an employer "furnish to each . . . employee . 21 . . on or before January 31 . . . a written statement 22 [(i.e., W-2 form)]" reflecting the remuneration received 23 during the last calendar year.). As Plaintiffs do not 24 articulate how the unfair prejudice substantially 25 outweighs the probative value of Narayan's and Nabinett's 26 W-2 forms, Plaintiffs' Rule 403 objection lacks merit. 27 28 10 1 Plaintiffs also contend Defendants cannot rely on 2 documents not previously identified or produced during 3 discovery, citing Linde v. Arab Bank, PLC, 269 F.R.D. 4 186, 207 (E.D.N.Y. 2010). In Linde, after the defendant 5 refused to comply with court orders requiring production 6 of documents, the plaintiffs filed a motion with the 7 court, which sanctioned the defendant under Federal Rule 8 of Civil Procedure 37(b). 269 F.R.D. at 194, 202. 9 Unlike Linde, here Plaintiffs have not filed any motions 10 under Rule 37 requesting sanctions for Defendants' 11 purportedly-untimely disclosures of Exhibits D, G, and H. 12 Accordingly, Linde is inapplicable. 13 14 Under Rule 37(c)(1), however, a court may, sua 15 sponte, exclude evidence that a party failed to disclose 16 under Rules 26(a) or 26(e). Nevertheless, to the extent 17 Plaintiffs rely on Rule 37(c) to exclude Exhibits D, G, 18 and H, they do so in vain. 19 20 21 22 Rule 37(c)(1) provides, If a party fails to provide information or identify a witness as required by Rule 26(a) or 26(e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless. 23 Fed. R. Civ. P. 37(c)(1). "This particular subsection, 24 implemented in the 1993 amendments to the Rules, is a 25 recognized broadening of the sanctioning power. The 26 Advisory Committee Notes describe it as a 27 'self-executing,' 'automatic' sanction to 'provide[ ] a 28 11 1 strong inducement for disclosure of material . . . .'" 2 Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 3 1101, 1106 (9th Cir. 2001) (citations omitted). The Rule 4 applies even where a party does not violate an explicit 5 court order, "and even absent a showing in the record of 6 bad faith or willfulness." Id. Rule 37(c)(1) was 7 amended in 2000 to "explicitly add[] failure to comply 8 with Rule 26(e)(2) as a ground for sanctions under Rule 9 37(c)(1), including exclusion of withheld materials." 10 Fed. R. Civ. P. 37 Advisory Committee's Note (2000). 11 Nevertheless, "[t]wo express exceptions ameliorate the 12 harshness of Rule 37(c)(1): The information may be 13 introduced if the parties' failure to disclose the 14 required information is substantially justified or 15 harmless." Yeti, 259 F.3d at 1106. 16 17 Even assuming, without deciding, that Defendants 18 disclosed Exhibits D, G, and H, untimely in violation of 19 Rule 37(c)(1), the Court finds any tardiness in 20 disclosure was harmless. As stated above, Exhibits D, G, 21 and H, are W-2 forms that Narayan and Nabinett would have 22 received before becoming named Plaintiffs in this action; 23 tellingly, neither Narayan nor Nabinett assert they did 24 not receive the W-2 forms. Accordingly, Plaintiffs are 25 not harmed by the allegedly-untimely disclosure of 26 documents already in Plaintiffs' possession. 27 28 12 Thus, 1 Plaintiffs' argument that Exhibits D, G, and H, should be 2 excluded as untimely lacks merit. 3 4 Plaintiffs' related argument that Defendants' failure 5 "to provide adequate explanation for [the] delayed 6 disclosure" prejudiced Plaintiffs similarly lacks merit, 7 as Plaintiffs do not articulate how untimely disclosure 8 of documents already in Plaintiffs' possession prejudiced 9 Plaintiffs. 10 11 In sum, the Court overrules Plaintiffs' objections to 12 Defendants' Exhibits D, G, and H. 13 14 15 16 3. Defendants' Exhibits 106 and 107 Attached to Nabinett's Deposition In support of their Motion, Defendants included 17 documents introduced as Exhibits 106 and 107 at 18 Nabinett's Deposition, which are purportedly documents 19 from Nabinett's personnel records with Defendants that 20 establish Nabinett's employment was terminated effective 21 September 19, 2006. (See SUF 19; Nabinett Depo. 62:10- 22 66:21; Nabinett Depo., Exs. 106, 107.) Defendants do not 23 satisfy their burden of demonstrating the admissibility 24 of Exhibits 106 and 107. Under Federal Rule of Evidence 25 901, authentication of an exhibit is a condition 26 precedent to admissibility, and "is satisfied by evidence 27 sufficient support a finding that the" document is what 28 13 1 its proponent claims. Fed. R. Evid. 901. Defendants 2 have not offered any evidence supporting their assertion 3 that these documents are what Defendants claim. 4 Accordingly, Exhibits 106 and 107 to Nabinett's 5 deposition are not authenticated properly, and are 6 therefore inadmissible. 7 8 Moreover, even if the documents were authenticated 9 properly, Defendants offer these Exhibits for the truth 10 of their contents, rendering the Exhibits hearsay. 11 Fed. R. Evid. 801(c). See Defendants do not, however, assert 12 that any hearsay exceptions apply. Accordingly, as 13 Defendants have not articulated a hearsay exception for 14 Exhibits 106 and 107, the exhibits are inadmissible 15 hearsay. 16 17 4. Plaintiffs' Evidence 18 In support of their Opposition, Plaintiffs submit 19 several transcripts of court proceedings and depositions. 20 Specifically, Plaintiffs attached: 21 1. 22 23 Status Conference; 2. 24 25 26 Transcript Portions from the September 28, 2010, Deposition Transcript portions for December 16, 2010, Deposition of Gordon Narayan; and 3. Deposition Transcript portions for December 14, 2010, Deposition of Nicole Nabinett 27 28 14 1 Plaintiffs did not, however, authenticate the transcript 2 exhibits properly. 3 4 To authenticate a transcript, or portion thereof, a 5 party must "identif[y] the names of the deponent and the 6 action and include[] the reporter's certification that 7 the deposition is a true record of the testimony of the 8 deponent." Orr, 285 F.3d at 774; see also Fed. R. Civ. 9 P. 30(f)(1) ("The [reporter's] certificate must accompany 10 the record of the deposition."). Here, Plaintiffs do not 11 attach reporters certifications to any of their 12 transcript portions. Accordingly, as Plaintiffs have not 13 authenticated the attached transcript portions properly, 14 they are inadmissible.3 15 16 C. Uncontroverted Facts 17 The following material facts are supported adequately 18 by admissible evidence and are uncontroverted. They are 19 "admitted to exist without controversy" for purposes of 20 the Motion. L.R. 56-3. 21 22 1. Gordon Narayan's Employment 23 Narayan began his employment with Defendants in 2003. 24 (SUF 1; Narayan Depo. 31:18-19; SGI 1.) While working 25 3 The Court has, nevertheless, reviewed these inadmissible transcript portions and finds that even if 27 this testimony was admissible, it would not alter the Court's analysis or raise any genuine issues of material 28 fact. 26 15 1 for Defendants, Narayan worked exclusively at Defendants' 2 Microsoft Redmond Campus in the Seattle, Washington area 3 ("Defendants' Microsoft Campus"). 4 Depo: 30:24-31:11, 58:3-7; SGI 2.) (SUF 2, 11; Narayan Defendants' Microsoft 5 Campus has been closed since June 2005. (SUF 12; Gilbert 6 Decl. ¶ 4.)4 7 8 In a declaration filed with the Court, Narayan 9 indicated that he was discharged in 2005. 10 Narayan Decl. ¶ 4; SGI 7.) (SUF 7; During Narayan's deposition, 11 however, he stated that he continued to work for 12 Defendants until 2006. 13 SGI 6.) (SUF 6; Narayan Depo. 31:18-21; Narayan has not produced any documentation 14 during this litigation demonstrating that he worked for 15 Defendants beyond 2004. 16 10.) (SUF 10; Messiha Decl. ¶ 11; SGI Moreover, when Defendants deposed Narayan, he did 17 not identify any documentation establishing that he 18 19 20 4 Plaintiffs dispute this fact "to the extent that 21 defendants attempt to use the fact that [Defendants' Microsoft Campus] has been closed in June 2005 to argue 22 that Mr. Narayan was not employed by [D]efendants through the statutory period." (SGI 12.) Plaintiffs do not, 23 however, offer any evidence or declarations in support of their dispute. Under Local Rule 56-3 a court may assume 24 a fact exists without controversy unless the fact is "(a) included in the "Statement of Genuine Disputes" [(i.e., 25 SGI)] and (b) controverted by declaration or other written evidence filed in opposition to the motion." 26 L.R. 56-3. Here, Plaintiffs filed no "declaration or other written evidence" that controverts the closure date 27 of Defendants' Microsoft Campus. Accordingly, the closure date for Defendants' Microsoft Campus is deemed 28 admitted without controversy. 16 1 worked for Defendants in 2006. (SUF 9; Narayan Depo. 2 32:3-10, 90:8-19; SGI 9.) 3 4 Narayan became a party to this action on January 17, 5 2008. (SUF 16; SGI 16; FAC ¶ 30.) 6 7 2. Nicole Nabinett's Employment 8 Nabinett began her employment with Defendants in May 9 2005, and worked as a security officer at various 10 locations in the Washington, D.C. area. (SUF 17, 18; 11 Nabinett Depo. 51:4-25, 91:22-92:21; SGI 17, 18.) 12 Nabinett alleged she worked for Defendants through July 13 2008. (SUF 26; Nabinett Depo. 8:24-9:9; SGI 26.) At her 14 deposition, Nabinett stated she did not keep any 15 documents demonstrating that she was employed by 16 Defendants past August 9, 2006. 17 70:10-17; SGI 24.) (SUF 24; Nabinett Depo. Nabinett has not produced any 18 documents demonstrating she worked for Defendants beyond 19 September 2006. (SUF 25; Messiha Decl. ¶ 11; SGI 25.) 20 21 Nabinett became a party to this action on January 17, 22 2008. (SUF 27; SGI 27; FAC ¶ 27.) 23 24 D. Disputed Facts 25 The parties dispute when Narayan's and Nabinett's 26 employment with Defendants ended. Defendants contend 27 Narayan's employment with Defendants ended in 2004, while 28 17 1 Plaintiffs assert that Narayan worked for Defendants 2 through January 18, 2005. (SUF 3; Ex. D; SGI 4, 5, 15.) 3 Similarly, Defendants contend Nabinett's employment with 4 Defendants ended on September 19, 2006, (SUF 19; Exs. G & 5 H), but according to Plaintiffs, Nabinett worked for 6 Defendants through 2008. (SGI 19, 20, 22.) 7 8 9 II. LEGAL STANDARD FOR SUMMARY JUDGMENT A motion for summary judgment shall be granted when 10 there is no genuine issue as to any material fact and the 11 moving party is entitled to judgment as a matter of law. 12 Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 13 477 U.S. 242, 247-48 (1986). The moving party must show 14 that "under the governing law, there can be but one 15 reasonable conclusion as to the verdict." Anderson, 477 16 U.S. at 250. 17 18 Generally, the burden is on the moving party to 19 demonstrate that it is entitled to summary judgment. 20 Margolis v. Ryan, 140 F.3d 850, 852 (9th Cir. 1998); 21 Retail Clerks Union Local 648 v. Hub Pharmacy, Inc., 707 22 F.2d 1030, 1033 (9th Cir. 1983). The moving party bears 23 the initial burden of identifying the elements of the 24 claim or defense and evidence that it believes 25 demonstrates the absence of an issue of material fact. 26 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). 27 28 18 1 When the non-moving party has the burden at trial, 2 however, the moving party need not produce evidence 3 negating or disproving every essential element of the 4 non-moving party's case. Celotex, 477 U.S. at 325. 5 Instead, the moving party's burden is met by pointing out 6 there is an absence of evidence supporting the non-moving 7 party's case. Id. 8 9 The burden then shifts to the non-moving party to 10 show that there is a genuine issue of material fact that 11 must be resolved at trial. Fed. R. Civ. P. 56(e); 12 Celotex, 477 U.S. at 324; Anderson, 477 U.S. at 256. The 13 non-moving party must make an affirmative showing on all 14 matters placed in issue by the motion as to which it has 15 the burden of proof at trial. Celotex, 477 U.S. at 322; 16 Anderson, 477 U.S. at 252; see also William W. Schwarzer, 17 A. Wallace Tashima & James M. Wagstaffe, Federal Civil 18 Procedure Before Trial, 14:144. 19 light one. "This burden is not a The non-moving party must show more than the 20 mere existence of a scintilla of evidence." In re Oracle 21 Corp. Securities Litigation, 627 F.3d 376, 387 (9th Cir. 22 2010) (citing Anderson, 477 U.S. at 252). "The 23 non-moving party must do more than show there is some 24 'metaphysical doubt' as to the material facts at issue." 25 In re Oracle, 627 F.3d at 387 (citing Matsushita Elec. 26 Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 27 (1986)). 28 19 1 A genuine issue of material fact exists "if the 2 evidence is such that a reasonable jury could return a 3 verdict for the non-moving party." 4 248. Anderson, 477 U.S. at In ruling on a motion for summary judgment, the 5 Court construes the evidence in the light most favorable 6 to the non-moving party. Barlow v. Ground, 943 F.2d 7 1132, 1135 (9th Cir. 1991); T.W. Elec. Serv. Inc. v. Pac. 8 Elec. Contractors Ass'n, 809 F.2d 626, 630-31 (9th Cir. 9 1987). 10 III. 11 12 DISCUSSION Defendants argue they are entitled to summary 13 judgment as to Narayan and partial summary judgment as to 14 Nabinett. Defendants first contend Nabinett's claims for 15 violations of the Fair Labor Standards Act ("FLSA") are 16 barred by the FLSA's statute of limitations. Defendants 17 also contend there is no genuine issue of material fact 18 as to the date Nabinett's employment with Defendants 19 ended. 20 21 A. FLSA Statute of Limitations 22 The statute of limitations for an FLSA action for 23 overtime pay is codified in 29 U.S.C. § 255. Under § 24 255, 25 26 27 an action must be commenced 'within two years after the cause of action accrued,' unless the cause of action arises 'out of a willful violation.' 29 U.S.C. § 255(a). In the case of a willful violation, the limitations period is extended to three years. Id. A new cause of action accrues at each payday 28 20 1 2 immediately following the work period for which compensation is owed. See, e.g., O'Donnell v. Vencor Inc., 466 F.3d 1104, 1113 (9th Cir.2006) (addressing the statute of limitations under 29 U.S.C. § 255). 3 4 Dent v. Cox Comm. Las Vegas, Inc., 502 F.3d 1141, 1144 5 (9th Cir. 2007). "A violation of the FLSA is willful if 6 the employer 'knew or showed reckless disregard for the 7 matter of whether its conduct was prohibited by the 8 [FLSA].'" Chao v. A-1 Med. Servs., Inc., 346 F.3d 908, 9 918 (9th Cir. 2003) (quoting McLaughlin v. Richland Shoe 10 Co., 486 U.S. 128, 133 (1988)). "If an employer acts 11 unreasonably, but not recklessly, in determining its 12 legal obligation" under the FLSA, its action is not 13 willful. McLaughlin, 486 U.S. at 135 n. 13. 14 15 Here, Plaintiffs seek unpaid overtime under the FLSA. 16 (See, e.g., FAC ¶¶ 40, 55-67.) Moreover, Plaintiffs 17 claim Defendants recklessly, willfully, and intentionally 18 failed to pay Plaintiffs the required overtime. 19 59, 63.) (FAC ¶¶ Accordingly, as Plaintiffs allege willful 20 violations of the FLSA, the maximum applicable statute of 21 limitations is three years from the date Plaintiffs' 22 cause of action accrued. Dent, 502 F.3d at 1144; see 23 also Mot. at 7, 10. 24 25 B. Gordon Narayan's Claims 26 Defendants argue the FLSA statute of limitations bars 27 Narayan's claims completely, entitling Defendants to 28 21 1 summary judgment. 2 18, 2008. Narayan joined this action on January (SUF 16.) Accordingly, under the FLSA's 3 three-year statute of limitations, Narayan's claims must 4 have accrued no later than January 18, 2005. Dent, 502 5 F.3d at 1144. 6 7 Defendants assert there is no genuine issue of 8 material fact that Narayan's employment with Defendants 9 ended in 2004, rendering Narayan's claims time-barred. 10 In support of their assertion, Defendants rely on the 11 Gilbert Declaration and Narayan's W-2 form (Exhibit D). 12 Defendants' Division Director of Human Resources, Lynn 13 Gilbert, reviewed personnel documents pertaining to 14 Narayan, and stated that he "was one of several employees 15 selected for a layoff from [Defendants'] Microsoft Campus 16 in 2004." (Gilbert Decl. ¶¶ 2, 3, 5.) Additionally, 17 Defendants conducted a search of their electronic tax 18 records for Narayan for the years 2004, 2005, and 2006, 19 and located a copy of Narayan's 2004 W-2 form. 20 Decl. ¶ 9; Ex. D.) (Gilbert Defendants could not locate any W-2 21 forms for Narayan for the years 2005 or 2006. (Gilbert 22 Decl. ¶ 9.) 23 24 The Court finds that the Gilbert Declaration and 25 Narayan's W-2 form for 2004, in conjunction with the lack 26 of W-2 forms showing Narayan worked in 2005 or 2006, 27 demonstrate sufficiently that Narayan's employment with 28 22 1 Defendants ended in 2004. Defendants therefore have 2 satisfied their burden of demonstrating they are entitled 3 to summary judgment. Accordingly, the burden shifts to 4 Plaintiff to make an affirmative showing that there is a 5 genuine issue of material fact to be resolved at trial. 6 Fed. R. Civ. P. 56(e); Celotex, 477 U.S. at 324 7 8 Here, the only evidence Plaintiffs offer to counter 9 Defendants' evidence is Narayan's Deposition testimony 10 and his Declaration. At Narayan's deposition, he 11 testified that he worked for Defendants from "2003 to 12 2006." (Narayan Depo. 31:18-21.) In his declaration, 13 Narayan stated that he began working for Defendants in 14 2002, and "[i]n 2005 [he] was fired by [Defendants]." 15 (Narayan Decl. ¶¶ 2,4.) Narayan has not produced any 16 documentation supporting Plaintiffs' contention that he 17 worked for Defendants beyond 2004; nor was Narayan able 18 to identify documentation at his deposition that 19 indicated he worked for Defendants in 2006. (SUF 9, 10; 20 SGI 9, 10.) 21 22 Moreover, Narayan's conclusory deposition testimony 23 that he worked for Defendants until 2006 cannot satisfy 24 his burden of raising a genuine issue of material fact, 25 in light of the undisputed facts here. The parties do 26 not dispute that while employed by Defendants, Narayan 27 worked at Defendants' Microsoft Campus exclusively. 28 23 (SUF 1 2; Narayan Depo: 30:24-31:11, 58:3-7.) It is also 2 undisputed that Defendants' Microsoft Campus has been 3 closed since June 2005. 4 I.C.1., n. 4, supra.) (SUF 12; see also Section Thus, given the undisputed facts, 5 Narayan could not have worked for Defendants after June 6 2005. Accordingly, Narayan's conclusory deposition 7 testimony that he worked for Defendants until 2006 does 8 not create a genuine issue of material fact. 9 10 Plaintiffs nevertheless contend Narayan's Deposition 11 and Declaration alone are sufficient to create a genuine 12 issue of material fact, citing Rodriguez v. Airborne 13 Express, 265 F.3d 890 (9th Cir. 2001) and Cornwell v. 14 Electra Central Credit Union, 439 F.3d 1018 (9th Cir. 15 2006). Plaintiffs rely on these authorities in vain. 16 17 In Rodriguez, the court rejected the defendant's 18 argument that the plaintiff's "'self-serving affidavit' 19 is insufficient to create a triable issue of fact," and 20 noted that "self-serving affidavits are cognizable to 21 establish a genuine issue of material fact so long as 22 they state facts based on personal knowledge and are not 23 too conclusory." 265 F.3d at 902. Unlike Rodriguez, 24 however, where the affidavit "set[] forth the facts . . . 25 with great specificity," Narayan's deposition testimony 26 and declaration state only the date Narayan's employment 27 purportedly ended. Neither Narayan's deposition 28 24 1 testimony nor his declaration provide additional factual 2 detail supporting his conclusory assertion regarding the 3 date his employment with Defendants ended. 4 5 Plaintiffs rely on Cornwell for the proposition that 6 "The Ninth Circuit 'has long held that a plaintiff may 7 defeat summary judgment with his or her own deposition.'" 8 (Opp'n at 3 (purportedly citing Cornwell, 439 F.3d at 9 1029).) Plaintiffs' reference to Cornwell is incorrect; 10 the case does not contain the language Plaintiffs cite.5 11 Rather, the cited language is from the Seventh Circuit in 12 Paz v. HealthCare and Rehabilitation Center, LLC, 464 13 F.3d 659, 664 (7th Cir. 2006), which Plaintiffs also 14 cite. 15 16 In Paz, the Seventh Circuit reversed a district 17 court's grant of summary judgment, holding that "a 18 plaintiff may defeat summary judgment with his or her own 19 deposition." 464 F.3d at 665. In support of this 20 holding, the Paz court relied, in part, on Payne v. 21 Pauley, 337 F.3d 767 (7th Cir. 2003). 22 664-65. Paz, 464 F.3d at In Payne, the court held that "self-serving 23 24 25 26 27 28 5 Cornwell is also distinguishable from our case. The Cornwell court addressed the evidentiary standard for circumstantial evidence used to establish that a defendant's nondiscriminatory explanation for terminating an employee is a pretext for racial discrimination. 439 F.39 at 1029. Plaintiffs do not assert a claim for racial discrimination, nor do Plaintiffs rely on circumstantial evidence. Accordingly, Cornwell is inapplicable here. 25 1 testimony cannot support a claim if the testimony is . . 2 . 'inherently implausible.'" Darchak v. City of Chicago 3 Bd. of Educ., 580 F.3d 622, 631 (7th Cir. 2009) 4 (describing the holding in Payne). 5 6 Here, Narayan's testimony is "inherently 7 implausible." Payne, 337 F.3d at 773. The dates Narayan 8 claimed he worked changed between his declaration and his 9 deposition, Narayan's deposition testimony regarding the 10 date he ended his employment with Defendants conflicts 11 with the undisputed facts, and Narayan has not produced, 12 nor could he identify any documents demonstrating he 13 worked for Defendants on or after January 18, 2005. 14 Accordingly, to the extent Payne is persuasive authority, 15 Narayan's deposition testimony and declaration do not 16 create a genuine issue of material fact, as they are 17 "inherently implausible." 18 19 This finding is in accord with the binding authority 20 in this circuit. In F.T.C. v. Neovi, Inc., 604 F.3d 21 1150, 1159 (9th Cir. 2010), a district court granted 22 summary judgment in favor of the plaintiff despite a 23 declaration from one of the defendant's executives. 24 F.3d at 1159. 604 The Ninth Circuit affirmed, holding 25 "[s]pecific testimony by a single declarant can create a 26 triable issue of fact, but the district court was correct 27 that it need not find a genuine issue of fact if, in its 28 26 1 determination, the particular declaration was 2 'uncorroborated and self-serving.'" Id. (citing 3 Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 4 (9th Cir. 2002)). 5 6 Like the testimony in Neovi, here, Narayan's 7 deposition testimony and declaration are self-serving and 8 uncorroborated. Neovi, 604 F.3d at 1159; cf. McSherry v. 9 City of Long Beach, 584 F.3d 1129, 1138 (9th Cir. 2009) 10 ("Summary judgment requires facts, not simply unsupported 11 denials . . . ."); Addisu v. Fred Meyer, Inc., 198 F.3d 12 1130, 1134 (9th Cir. 2000) ("A scintilla of evidence or 13 evidence that is merely colorable . . . does not present 14 a genuine issue of material fact.") Accordingly, 15 Narayan's deposition testimony and declaration do not 16 create a genuine issue of material fact. The Court 17 therefore finds Defendants have established conclusively 18 that they did not employ Narayan after 2004. 19 20 Narayan joined this action on January 18, 2008. 21 Under the FLSA's three-year statute of limitations, 22 Narayan's claims must have accrued no later than January 23 18, 2005. Dent, 502 F.3d at 1144. As Defendants did not 24 employ Narayan after 2004, any claims accrued more than 25 three years before Narayan joined the action and are, 26 accordingly, barred. The Court therefore GRANTS 27 28 27 1 Defendants' Motion as to Gordon Narayan and DISMISSES his 2 claims with prejudice. 3 4 C. Nicole Nabinett's Claims 5 Defendants seek a determination that Nabinett may 6 seek relief only for those claims running from the 7 maximum limitations period to the end of her employment 8 with Defendants in September 2006. (Mot. at 10.) The 9 parties do not dispute that Nabinett began working for 10 Defendants in May 2005, and became a party to this action 11 on January 17, 2008. (SUF 17, 27; SGI 17, 27.) As 12 Nabinett began her employment with Defendants within 13 three years of becoming a party to this suit, none of 14 Nabinett's claims are barred by the FLSA's three-year 15 statute of limitations. Dent, 502 F.3d at 1144. The 16 inquiry as to Nabinett, therefore, is when her employment 17 with Defendants ended. 18 19 Defendants assert there is no genuine issue of 20 material fact that Nabinett's employment with Defendants 21 ended on September 19, 2006. In support of their 22 assertion, Defendants rely on the Gilbert Declaration, 23 Nabinett's W-2 forms for tax years 2005 and 2006, the 24 absence of W-2 forms for Nabinett for tax years 2007 and 25 2008, and Nabinett's failure to produce or identify any 26 documents demonstrating she worked for Defendants after 27 September 2006. 28 28 1 Defendants' Division Director of Human Resources, 2 Lynn Gilbert, reviewed personnel documents pertaining to 3 Nabinett. (Gilbert Decl. ¶ 3.) The Gilbert Declaration 4 contains several statements summarizing the contents of 5 Exhibits, but does not contain any independent statements 6 reflecting Ms. Gilbert's personal knowledge of Nabinett's 7 employment dates. (See, e.g., Gilbert Decl. ¶ 12 ("The 8 summary shows . . . .").) 9 10 Nevertheless, the Gilbert Declaration also states 11 that Defendants conducted a search "for all IRS Form W-2s 12 issued to Nicole Nabinett by Defendants in the years 13 2005, 2006, 2007 and 2008." (Gilbert Decl. ¶ 11.) 14 Defendants located a copy of Nabinett's 2005 and 2006 W-2 15 forms. (Id.; Exs. G, H.) Defendants could not locate 16 any W-2 forms for Nabinett for the years 2007 or 2008. 17 (Gilbert Decl. ¶ 11.)6 Moreover, it is undisputed that 18 6 Plaintiffs 19 "Paragraph 11 of dispute this statement, contending state [the Gilbert Declaration] does not whether any IRS W-2 forms were located for Ms. Nabinett 20 in 2008." (SGI 22.) The Gilbert Declaration, Paragraph relevant part, 21 11, states in was conducted for all IRS Form W-2s issued A search to Nicole Nabinett by Defendants in the years 2005, 22 2006, 2007 and 2008. IRS Form W-2s were issued to Nabinett in 2005 and 2006. No such forms were 23 located for the years 2006 or 2007. True and correct copies of Nabinett's 2005 and 2006 IRS Form W-2s . . 24 . are attached respectively hereto as Exhibits "G" and "H." 25 to 2005 26 Further, Exhibits G and H appearare be Nabinett'sthe and 2006 W-2 forms. Plaintiffs correct that 27 Gilbert Declaration does not state whether any IRS Form W-2 was found for 2008. The Court assumes this is a (continued...) 28 29 1 Nabinett has not produced any documents establishing she 2 worked for Defendants beyond September 2006, nor could 3 she identify any documentation establishing she worked 4 for Defendants through 2008. (SUF 24, 25; SGI 24, 25.) 5 6 The Court finds that the presence of W-2 forms for 7 2005 and 2006, in conjunction with the lack of W-2 forms 8 demonstrating Nabinett worked for Defendants in 2007 or 9 2008 and Nabinett's inability to identify or produce 10 documents demonstrating she worked for Defendants past 11 September 2006, demonstrates sufficiently that Nabinett's 12 employment with Defendants ended in September 2006. 13 Defendants therefore have satisfied their burden of 14 demonstrating they are entitled to summary judgment by 15 "pointing out . . . that there is an absence of evidence 16 to support the nonmoving party's case." Celotex, 477 17 U.S. at 325; see also Soremekun v. Thrifty Payless, Inc., 18 509 F.3d 978, 984 (9th Cir. 2007) (affirming the 19 20 6 (...continued) typographical error. 21 The Gilbert Declaration states that no W-2 "forms 22 were located for the years 2006 or 2007." (Gilbert Decl. ¶ 11.) Yet, Defendants identify and attach Nabinett's W23 2 form for 2006 as Exhibit G. Accordingly, it appears the sentence in paragraph 11 stating no "forms were 24 located for the years 2006 or 2007" should read "forms were located for the years 2007 or 2008." Indeed, this 25 reading comports with the facts alleged here, as neither party contends Nabinett worked for Defendants in 2006, 26 ceased working for Defendants throughout 2007, and then resumed her employment with Defendants in 2008. Thus, 27 the Court assumes paragraph 11 contains a typographical error, and that no W-2 forms were found for Nabinett for 28 2007 or 2008. 30 1 continued validity of Celotex and holding "On an issue as 2 to which the nonmoving party will have the burden of 3 proof, however, the movant can prevail merely by pointing 4 out that there is an absence of evidence to support the 5 nonmoving party's case."). Accordingly, as Defendants 6 have satisfied their initial burden, the burden shifts to 7 Plaintiff to make an affirmative showing that there is a 8 genuine issue of material fact to be resolved at trial. 9 Fed. R. Civ. P. 56(e); Celotex, 477 U.S. at 324 10 11 Here, Nabinett's statements are the only evidence 12 Plaintiffs offer to counter Defendants' evidence. 13 Specifically, Plaintiffs offer Nabinett's deposition 14 testimony, a survey she completed during this litigation, 15 and her declaration. Nabinett testified during her 16 deposition that she worked for Defendants through 2008. 17 (Nabinett Depo. 8:19-9:9.) Additionally, in a survey 18 dated March 9, 2010, Nabinett stated her "Approximate 19 date[s] [of employment with Defendants were] May 2005 to 20 April 2008." (Ex. 6 at 1.) Finally, in a declaration 21 signed on February 8, 2011, Nabinett stated "In or around 22 July 2008, [she] concluded her employment with 23 [Defendants]." (Nabinett Decl. ¶ 3.) Nabinett was 24 unable to produce or identify any documents, however, 25 that could corroborate her assertions that she worked for 26 Defendants through 2008. (SUF 24, 25; SGI 24, 25.) 27 28 31 1 Where, as here, the only evidence Plaintiffs offer is 2 "uncorroborated and self-serving," Plaintiffs have not 3 satisfied their burden of demonstrating a genuine issue 4 of fact exists as to the date Nabinett left Defendants 5 employ. Neovi, 604 F.3d at 1159. 6 7 Nevertheless, while Defendants have demonstrated 8 Nabinett's employment did not continue beyond September 9 2006, Defendants have not provided admissible evidence 10 demonstrating when in September 2006 Nabinett's 11 employment with Defendants ended. Accordingly, the Court 12 GRANTS Defendants' Motion as to Nicole Nabinett in part; 13 Defendants have established conclusively that Nabinett 14 worked for Defendants until September 2006. 15 IV. 16 17 CONCLUSION For the foregoing reasons, the Court finds Defendants 18 are entitled to summary judgment on Gordon Narayan's 19 claims. As Narayan's claims are barred by the FLSA 20 statute of limitations, the Court DISMISSES his claims 21 WITH PREJUDICE. 22 23 The Court also finds Defendants are entitled to 24 summary adjudication on Nabinett's claims, i.e., 25 26 27 28 32 1 Defendants have established conclusively Nabinett worked 2 for Defendants until September 2006. Plaintiffs may not 3 assert otherwise at trial or in future motions. 4 5 6 Dated: March 9, 2011 7 VIRGINIA A. PHILLIPS United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 33

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