Plaintiff as an employee and exerted significant control over the type of work he could perform, when he worked, how he worked, for whom he worked, and how much he could earn. IV. Conclusion For the foregoing reasons, the Court concludes that Plaintiff was Defendant's employee and may, therefore, be entitled to overtime compensation under the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. DONE and ORDERED. All Citations Not Reported in F.Supp.2d, 2009 WL 2868432 End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works. Case 2:16-cv-00746-SPC-MRM Document 109 Filed 02/06/19 Page 438 of 520 PageID 1074 Quarles v. Hamler, 652 Fed.Appx. 792 (2016) 26 Wage & Hour Cas.2d (BNA) 935 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 1 KeyCite Yellow Flag - Negative Treatment  Distinguished by Dimingo v. Midnight Xpress, Inc., S.D.Fla., July 2, 2018 652 Fed.Appx. 792 This case was not selected for publication in West's Federal Reporter. See Fed. Rule of Appellate Procedure 32.1 generally governing citation of judicial decisions issued on or after Jan. 1, 2007. See also U.S. Ct. of App. 11th Cir. Rule 36-2.

Not for Publication in West's Federal Reporter. See Fed. Rule of Appellate Procedure 32.1 generally governing citation of judicial decisions issued on or after Jan. 1, 2007. See also Fifth Circuit Rules 28.7, 47.5.3, 47.5.4.

1 states nearly the opposite: courts must allow citation of certain unpublished decisions. The Opposition’s citation to Sorchini v. City of Covina (9th Cir. 2001) 250 F.3d 706 is inapposite because it predates the 2006 amendment of F.R.A.P. 32.1. There is no such rule as F.R.A.P. 36- 3; Ninth Circuit Rule 36-3 similarly allows citation of unpublished decisions in certain circumstances.

1 a court may not prohibit or restrict the citation of judicial opinions, orders, judgments, or other written dispositions that have been designated as ‘unpublished’ if issued on or after January 1, 2007. See also Ninth Circuit Rule 36-6(b) (unpublished dispositions and orders issued on or after January 1, 2007 may be cited to in accordance with Fed. R.App. P. 32.1)”). Case 3:07-cv-02209-L-WMC Document 20 Filed 03/05/2008 Page 3 of 5 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 06-CV-1012 WQH RBB 4 The Song-Beverly Act is even more clear as to how courts ought to construe it in instances where it differs from California’s version of the UCC.

As were the Plaintiffs in Garlick, Plaintiffs in this matter were required to participate in the Board of Nursing/Pharmacists Diversion Program and, as part of the program, submit to EtG testing. As did the Plaintiffs in Garlick, Plaintiffs in the instant matter 1 F.R.A.P. 32.1(a) provides a court may not prohibit or restrict the citation of federal judicial opinions, orders, judgments, or other written dispositions that have been: (i) designated as “unpublished,” “not for publication,” “non-precedential,” “not precedent,” or the like; and (ii) issued on or after January 1, 2007. Case 3:07-cv-05642-BZ Document 38 Filed 02/20/2008 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- COMPASS VISION, INC.’S OPPOSITION TO PLAINTIFFS’ MOTION TO STRIKE CASE NO.

See 9th Cir. R. 36-3. Newly-adopted Federal Rule of Appellate Procedure 32.1 is inapplicable to unpublished decisions issued prior to January 1, 2007. In any event, Devon predates Rissetto, and, consequently, its finding that judicial estoppel is limited to judicial proceedings is contrary to binding precedent.

Further, any alleged violation after August 2015 was cured when Defendants offered Plaintiffs a trial loan modification on March 21, 2017. 1 Although Deschaine is unpublished, pursuant to Federal Rule of Appellate Procedure 32.1(a), citations to unpublished orders by the Ninth Circuit are permitted, although such decisions are non-precedential. DMEAST #28503624 v1 5 NOTICE OF MOTION AND MOTION TO DISMISS THIRD AMENDED COMPLAINT Case 2:15-cv-03213-BRO-E Document 60 Filed 05/15/17 Page 10 of 14 Page ID #:867 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 TAC, ¶ 74 & Exhibit ‘E.’ Cal.

In any event, the decision was unpublished and issued pre-2007, therefore it cannot properly be cited for persuasive value in the Ninth Circuit. Fed. R. App. P. 32.1; Ninth Cir. Rule 36-2(c).

Not for Publication in West's Federal Reporter See Fed. Rule of Appellate Procedure 32.1 generally governing citation of judicial decisions issued on or after Jan. 1, 2007. See also Third Circuit LAR, App. I, IOP 5.7.

Servs., 617 Fed. Appx. 690, 693 (9th Cir. 2015) (because of Deschaine’s multiple defaults, Deschaine did not have a statutory right to appeal subsequent loan modification application denials.”).2 2 Although Deschaine is unpublished, pursuant to Federal Rule of Appellate Procedure 32.1(a), citations to unpublished orders by the Ninth Circuit are permitted, although such decisions are non-precedential. Case 2:15-cv-03213-BRO-E Document 51 Filed 03/06/17 Page 10 of 16 Page ID #:691 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 DMEAST #28503624 v1 6 NOTICE OF MOTION AND MOTION TO DISMISS SECOND AMENDED COMPLAINT Here, Plaintiffs allege that their loan was modified in 2009 and that they defaulted under the modified payments.