Tijerino v. Stetson Desert Project LLC et al

RESPONSE in Opposition re: 73 MOTION to Vacate Clerk's Judgment on Taxation of Costs

D. Ariz.July 5, 2018

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Laurent R.G. Badoux, AZ Bar No. 020753 LBadoux@Buchalter.com BUCHALTER 16435 N. Scottsdale Rd., Suite 440 Scottsdale, Arizona 85254 Telephone: (480) 383-1800 Facsimile: (480) 824-9400 Attorneys for Defendants IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Josephine Tijerino, Plaintiff, v. Stetson Desert Project LLC d/b/a Le Girls Cabaret, Cory J. Anderson, and Cary Anderson, Defendants. Case No. 2:15-CV-02563-SMM (Consolidated with Case Nos. 2:15-cv- 02564 and 2:16-cv-00408 DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTION TO VACATE CLERK’S JUDGMENT ON TAXATION OF COSTS Tamicka Toliver, Plaintiff, v. Stetson Desert Project LLC d/b/a Le Girls Cabaret, Cory J. Anderson, and Cary Anderson, Defendants. Jane Roe Dancer, Plaintiff, v. Stetson Desert Project LLC d/b/a Le Girls Cabaret, Cory J. Anderson, and Cary Anderson, Defendants. Defendants Stetson Desert Project LLC d/b/a Le Girls’ Cabaret, Cory J. Anderson, and Cary Anderson (collectively referred to as “Defendants”), by and through their Case 2:15-cv-02563-SMM Document 74 Filed 07/05/18 Page 1 of 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -2- undersigned counsel, respond to Plaintiff Josephine Tijerino’s request that the Court review and vacate the Clerk’s “judgment on taxation of cost.” (Doc. 73) Plaintiff raises four points: (1) the application was untimely; (2) Defendants are not prevailing parties; (3) depositions were “not necessary” so no costs should be awarded; and (4) costs were improperly imposed upon only one of the plaintiffs in these consolidated cases. None of these points support the relief Plaintiff Tijerino seeks, although Defendants take no position on whether the costs should be taxed on one or all of the claimants. 1. Application for Cost Was Timely Plaintiff Tijerino does not question that the Application for Taxation of Costs was timely filed on June 1, 2018, or the accuracy of the amount of the costs at issue. She only disputes that the enumeration of such costs was not provided at the time of filing. On June 19, Defendants received notice of a Minute Entry requesting that Defendants submit an exhibit to the application enumerating the costs requested and their respective amounts on or before June 29. Defendants filed the requested exhibit on June 21, well within the time provided in the Minute Entry. The Application was timely. 2. Defendants Are Prevailing Parties Tijerino claims Defendants are not prevailing parties because the case was dismissed. The Court dismissed the matter because it determined that Tijerino and the other claimants in the consolidated action had not established the existence of an employment relationship with Defendants, which is at the core of the Court’s federal subject matter jurisdiction in matters brought pursuant to the FLSA. Tijerino’s reliance upon Miles v. State of California, 320 F.3d 986 (9th Cir. 2003) is misplaced. In that case, a panel of the Ninth Circuit awarded over $20,000 in costs to the defendant, as prevailing party, even though the matter was dismissed without prejudice to refile a state court action. Here, the Court’s dismissal involved a threshold determination of the existence of an employment relationship (or lack thereof), which “materially altered” the legal relationship between the parties, fulfilling the standards set in Buckhannon Bd. & Care Home, Inc., v. W.Va. Dep’t of Health & Human Res., 532 US 598 (2001); see also Carter Case 2:15-cv-02563-SMM Document 74 Filed 07/05/18 Page 2 of 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3- v. Village of Ocean Beach, 759 F.3d 159 (2nd Cir. 2014) (awarding costs against employees in civil rights lawsuit even when they voluntarily dismissed claims). In other words, the Court’s determination that Tijerino and other dancers were not engaged in an employment relationship with Defendants materially altered the legal relationship between them. 3. Depositions Were Necessary Tijerino, in an allegation rich in irony, contends that depositions were unnecessary in this case, in light of the disposition of the action. Of course, at the time of the depositions, all parties viewed them as necessary, since Plaintiffs had filed a motion for collective action certification, which was supported in part by declarations from individual claimants, and the Court had issued a scheduling order calling for the completion of discovery. See Doc. 24. Indeed, Plaintiffs in the consolidated action requested and conducted a day-long deposition of Defendants’ 30(b)(6) representative on January 4, 2017, as is clear from the Exhibit to the Application. Around the same time, Defendants conducted the depositions of Plaintiffs Toliver and Tijerino (December 30, 2016 and January 11, 2017, respectively). The Parties were conducting discovery as was their obligations (see Scheduling Order at Doc. 24) and investigating information relevant to the claimants’ contention that they had an employment relationship with Defendants, a contention which the Court ultimately rejected. As Plaintiff’s own conduct demonstrates, the taking of depositions was by no means “unnecessary” at the time. 4. Apportionment of Costs Between Claimants Is Insufficiently Alleged Tijerino contends she should not be responsible solely for the payment of costs but that they should be apportioned among the three consolidated lawsuits. What Tijerino does not allege is that she is actually responsible for costs, as opposed to her counsel. She submits no statement or exhibit to support the claim that she is actually, personally responsible for the taxed costs at issue. Assuming for the sake of argument only she can establish that she is personally responsible for payment of the taxed costs in this matter, there is also no evidence presented as to the existence (or the absence) of any agreement Case 2:15-cv-02563-SMM Document 74 Filed 07/05/18 Page 3 of 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4- between the consolidated litigants to share in the obligation to pay costs in this matter. It is common that individual claimants be absolved of responsibility from such costs by agreement with their counsel or that co-litigants agree to share obligations or entitlements to costs, fees or monetary awards or sanctions. Tijerino does not allege that she has no recourse against her co-litigants for a recovery of the taxed costs, and she certainly could obtain such relief at common law. Absent evidence on this issue, Tijerino does not meet her burden to establish that the award was improper or that it should be structured so as to be equally apportioned among and between all litigants. For these reasons, Defendants respectfully request that the Court deny Plaintiff Tijerino’s request and that the Judgment on Taxation of Costs (Doc 72) be confirmed. DATED this 5th day of July, 2018. BUCHALTER, PC By: /s/ Laurent R.G. Badoux Laurent R.G. Badoux Attorneys for Defendants I hereby certify that I electronically transmitted the attached document to the Clerk’s Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants, and mailed a copy of same to the following if non-registrants, this 5th day of July, 2018, to: Clifford P. Bendau, II THE BENDAU LAW FIRM PLLC P. O. Box 97066 Phoenix, AZ 85060-7066 Email: cliffordbendau@bendaulaw.com Attorneys for Plaintiff P. Andrew Sterling RUSING LOPEZ & LIZARDI, P.L.L.C. 6363 North Swan Road, Suite 151 Tucson, Arizona 85718 asterling@rllaz.com Attorneys for Plaintiff By: /s/ Lori Harpel Case 2:15-cv-02563-SMM Document 74 Filed 07/05/18 Page 4 of 4