United States District Court, W.D. Wisconsin
ANDREW J. POPE and JOSHUA RAVE, Plaintiffs,
ESPESETH, INC., FISH WINDOW CLEANING SERVICES, INC., and ANTHONY ESPESETH, Defendants.
OPINION & ORDER
D. PETERSON District Judge.
Andrew J. Pope and Joshua Rave are window cleaners who filed
a proposed collective action alleging that their former
employers paid them using a commission-based method of
employee compensation that failed to pay them minimum wage
and overtime pay, in violation of the Fair Labor Standards
Act (FLSA), 29 U.S.C. §§ 201-19, and Wisconsin wage
and hour laws. Dkt. 14. Plaintiffs name as defendants
Espeseth, Inc., a franchisee of defendant Fish Window
Cleaning Services, Inc., and Anthony Espeseth, the
franchisee's owner. Plaintiffs allege that Espeseth,
Inc., (the franchisee) and Fish (the franchisor) are joint
employers of plaintiffs.
has moved for summary judgment that it is not plaintiffs'
employer under the FLSA or Wisconsin wage and hour laws. Dkt.
53. Plaintiffs have filed three preliminary motions in an
attempt to avoid summary judgment against them, which the
court will deny. The court will grant Fish's summary
judgment motion and dismiss Fish from the case. The court
will also grant plaintiffs' motion for conditional
certification of a class on its claims against the remaining
move for leave to amend their complaint so that they may
pursue an apparent agency theory of liability against Fish.
Dkt. 78. In support of their motion, plaintiffs state that
they attempted to plead a claim that Fish was their apparent
employer, but failed to include allegations that plaintiffs
reasonably relied upon Fish's representation that
plaintiffs worked for Fish, an essential element of the
apparent agency theory. They now wish to correct their error.
court need not determine which deadline for amendments
controls-the December 22, 2015 deadline last ordered by the
court, see Dkt. 10, or the May 31, 2016 deadline
agreed to by the parties, see Dkt. 28, at 4-because
both have long since passed. When a party seeks leave to
amend its complaint after the court-imposed deadline for
amending without the court's leave, this court analyses
the motion under Federal Rule of Civil Procedure 15.
Plaintiffs do not request the extension of any deadlines in
the court's scheduling order, so Rule 16 does not apply.
Rule 15, the court should freely give leave to amend when
justice so requires. “[L]eave to amend need not be
given if there is an apparent reason not to do so, such as
‘undue delay, bad faith or dilatory motive on the part
of the movant, repeated failure to cure deficiencies by
amendments previously allowed, undue prejudice to the
opposing party by virtue of allowance of the amendment, [or]
futility of amendment.'” Payne v.
Churchich, 161 F.3d 1030, 1036 (7th Cir. 1998)
(alteration in original) (quoting Foman v. Davis,
371 U.S. 178, 182 (1962)). Here, the issue is undue delay.
Plaintiffs filed their motion to amend their complaint to
include an additional theory of liability based on apparent
agency the same day Fish's motion for summary judgment on
the issue of joint employer liability was fully briefed, more
than five months after the deadline for amending pleadings
agreed to by the parties and more than 10 months after the
deadline set by the court's scheduling order.
contend that they “attempted” to plead the
apparent employer theory in their first amended complaint,
but failed. The lack of bad faith would not excuse
plaintiffs' delay in making the amendment. More
important, it does not cure the prejudice that Fish would
suffer were the court to allow the amendment. Under Rule 8, a
complaint must contain “‘a short and plain
statement of the claim showing that the pleader is entitled
to relief, ' in order to ‘give the defendant fair
notice'” of the claim and its basis. Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting
Conley v. Gibson, 355 U.S. 41, 47 (1957)).
Plaintiffs' first amended complaint did not give Fish any
notice that plaintiffs were pressing an apparent agency
theory of liability. To allow them to amend their complaint
now, five months after the agreed-upon deadline and when
Fish's motion for summary judgment on the issue of its
liability as an employer is fully briefed, would prejudice
Fish and contradict the purpose of a complaint. Plaintiffs
have not explained why they did not make the requested
amendment much sooner, when Fish could have addressed the
apparent agency theory on summary judgment. The court will
deny plaintiffs' motion to amend their complaint.
also move the court to stay consideration of Fish's
motion for summary judgment. Dkt. 90. Rule 56(d) allows the
court to deny or defer consideration of a summary judgment
motion when the “nonmovant shows by affidavit or
declaration that, for specified reasons, it cannot present
facts essential to justify its opposition.” Plaintiffs
have the burden of showing why they “cannot adequately
respond to the summary judgment motion without further
discovery.” Sterk v. Redbox Automated Retail,
LLC, 770 F.3d 618, 628 (7th Cir. 2014) (quoting
Deere & Co. v. Ohio Gear, 462 F.3d 701. 706 (7th
Cir. 2006)). The court has “broad discretion to
deny” motions under Rule 56(d). Dewitt v. Corizon,
Inc., 760 F.3d 654, 660 (7th Cir. 2014).
have not shown that relief under Rule 56(d) is necessary.
Plaintiffs complain that Fish cited the declarations of three
other franchisees, Dkt. 72; Dkt. 73; Dkt. 77, in its reply in
support of its summary judgment motion, so plaintiffs ask for
more time to conduct discovery concerning these franchisees.
But the declarations in question are not relevant to the
court's analysis of Fish's summary judgment motion,
so the court will not delay consideration of that motion to
allow the discovery that plaintiffs request.
plaintiffs move for leave to file a sur-reply in opposition
to Fish's motion for summary judgment. Dkt. 89. The court
has previously explained to the parties that it
“permits sur-replies only in rare, unusual
situations.” Dkt. 33, at 11. Plaintiffs argue that they
deserve the opportunity to address three arguments raised by
Fish in its reply. First, plaintiffs wish to respond to
Fish's argument based on the supplemental declaration of
Angie Masters, Dkt. 86, submitted for the first time with
Fish's reply. But the declaration is not relevant to the
court's analysis of Fish's summary judgment motion,
so a sur-reply to address the declaration is unnecessary.
Second, plaintiffs wish to respond to Fish's arguments
concerning plaintiffs' apparent agency theory. But
because the court will deny plaintiffs' motion to amend
their complaint to include this theory, it will not consider
either party's arguments concerning this theory. Finally,
plaintiffs wish to respond to Fish's argument that Fish
is not plaintiffs' employer under the standard advanced
in Kerl v. Dennis Rasmussen, Inc., 2004 WI 86,
¶ 43, 273 Wis.2d 106, 682 N.W.2d 328. Fish's
argument, made in response to plaintiffs' assertion that
Kerl is controlling, does not present the rare,
unusual situation calling for a sur- reply. But regardless,
as discussed below, the Kerl standard does not apply
to plaintiffs' claims, so further argument about the
application of Kerl is unnecessary. The court will
deny plaintiffs' motion.
following facts, except where noted, are undisputed.
Espeseth entered into a franchise agreement with Fish in 2004
to open a window cleaning business under the “Fish
Window Cleaning” name. He renewed the agreement in
2014. Sometime after the renewal, Anthony Espeseth may have
assigned his interest in the franchise agreement to his
corporate entity, Espeseth, Inc. The parties dispute whether
the assignment was fully executed, but for the purposes of
Fish's summary judgment motion, whether Anthony Espeseth
or Espeseth, Inc., was the franchisee does not matter, so, in
this order, the court will refer simply to
“Espeseth” as the franchisee.
franchise agreement governing the relationship between
Espeseth and Fish states that Espeseth, as a franchisee, is
“an independent business . . . solely responsible for
control and management . . . including such matters as hiring
and discharging [its] employees” and that Fish, as the
franchisor, has “no power, responsibility or liability
in respect to employee relations issues including hiring,
discharge and discipline, and related matters.” Dkt.
56-5, at 12 and Dkt. 56-6, at 14. The franchise agreement
requires Espeseth to “hire and supervise efficient,
competent, and courteous persons . . . require [them] to work
in clean uniforms approved by [Fish] . . . hire and supervise
a satisfactory number of employees [and] execute
non-disclosure and confidentiality agreements with
[them].” Dkt. 56-5, at 14 and Dkt. 56-6, at 16. The
franchise agreement makes clear that “[n]o employee of