NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

IVAN PENTCHEV IONTCHEV; YAW BOATENG; ABRAHAM DENG, On Behalf of Themselves and All Others Similarly Situated,

Plaintiffs

- Appellants,

v.
AAA CAB SERVICE, INC., DBA AAA Sedan, DBA AAA Yellow Cab Company, DBA Aguila’ s, DBA Checker, DB A Couri er, DBA Fiesta, DBA Neal’ s, DBA TLC, DBA Yellow, an Arizona corporation; H&M ENTERPRISES, INC., an Arizona corporation; YELLOW CAB COMPANY, an Arizona corporation; MIR MASOOD SHAMSA, husband; AHOU SHAMSA, wife; HOSSEIN DIBAZAR, husband; LEILA DIBAZAR, wife ; JACK GILMET, husband; JANE DOE GILMET, wife,

Defendants

- Appellees. No. 15

- 15789

D.C. Nos. 2:12

- cv

- 00256

- ROS

2:13

- cv

- 02152

- ROS 2: 14

- cv

- 00038

- ROS

MEMORANDUM *

Appeal from the United States District Court for the District of Arizona Roslyn O. Silver, District Judge, Presiding
Argued and Submitted March 17, 2017 San Francisco, California

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3. 

# FILED

MAR 27 2017

MOLLY C. DWYER, CLER K U.S. COURT OF APPEAL S2

Before: TALLMAN and WATFORD, Circuit Judges, and GUIROLA, ** Chief District Judge.
Appellants (collectively, the Drivers) brought this consolidated class action
against appellees (collectively, AAA Cab), alleging failure to pay timely and
minimum wages in violation of the Fair Labor Standards Act (FLSA), 29 U.S.C.

§ 206, and Arizona law, Ariz. Rev. Stat. (A.R.S.) §§ 23

- 351, 2 3

- 363. 1 The Drivers
appeal the district court’s order denying their motion for partial summary judgment
and granting summary judgment in favor of AAA Cab on all claims. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
The central question befo re us is whether AAA Cab properly classified the
Drivers as independent contractors instead of employees. AAA Cab, which has the
burden of proof on that issue, has established by clear and convincing evidence
that the Drivers are independent contractors u nder the FLSA and Arizona law. See

A.R.S. § 23

- 362(D); United States v. Jordan , 256 F.3d 922, 930 (9th Cir. 2001)
(clear and convincing evidence means “highly probable” or “reasonably certain”).
The Drivers’ classification is governed by the “economic reality” of their

** The Honorable Louis Guirola, Jr., Chief United States District Judge for the Southern District of Mississippi, sitting by designation.

1 The district court previously certified the class as “[a]ll current drivers who operate leased taxis from [AAA Cab] for the purpose of transporting pas sengers from Phoenix Sky Harbor International Airport” (the Airport) and all “relief drivers who do not have primary responsibility on the lease with [AAA Cab].”3

working relationship with AAA Cab. See Goldberg v. Whitaker House Co

- op.,

Inc. , 366 U.S. 28, 33 (1961). “[E]mployees are those who as a matter of economic

reality are dependent up on the business to which they render service.” Bartels v.
Birmingham , 332 U.S. 126, 130 (1947) . Thus, to classify the Drivers as
independent contractors, AAA Cab must prove that the D rivers are not
economically dependent on AAA Cab. See Real v. Driscoll Strawberry Assocs.,

Inc. , 603 F.2d 748, 754 (9th Cir. 1979). The district court properly applied the six

factors our cases articulate:
(1) AAA Cab had relatively little cont rol over the manner in which the
Drivers performed their work. AAA Cab did not maintain attendance logs,

establish the Drivers’ work schedules, or mandate a minimum number of hours the
Drivers had to spend at the Airport. It had very few records regarding the hours

worked o r fares earned by each Driver, and its disci plinary policy primarily

enforced the Airport’s rules and regulations governing the Drivers’ cab operations
and conduct. Phx. City Code §§ 4

- 2, 4

- 4, 4

- 67 to 4

- 83; Phx. Aviation Dep’t Rules

& Regs. Nos. 04

- 01, 08

- 01. 2

(2) The Driver s ’ opportun ity for prof it or loss depended upon their
managerial skill. The Drivers typically paid a flat fee to lease taxicabs from AAA

2 We do not address whether AAA Cab is a joint employer with the City because the Driver s did not properly raise that issue before the district court. See Peterson v. Highland Music, Inc.
, 140 F.3d 1313, 1321 (9th Cir. 1998)

.4

Cab, could work as much or as little as they wanted, kept all earnings from
passenger fares except in very limited circumstances, 3 were free to provi de taxi
services away from the A irport , could pass out business cards to passengers and
develop their own clientele, and could share their taxicabs with authorized relief
drivers with whom they personally negotiated the number of hours each driver
would use the cab and how they would split up the fuel and lease costs.
(3) The Driver s invest ed in equipment or materials and employ ed helpers to
perform their work

. The Drivers purchased their own gas, car washes, cleaning
products, and business cards. In addition, many Drivers hired “helpers” in the

form of relief drivers. However, because AAA Cab leased taxicabs and credit card

machines to most of the Drivers , this factor is neutral.
(4) The servic e rendered by the Drivers did not require a special skill

. T he
Drivers did not need extensive training, special technical knowledge, or highly
developed skills to provide taxicab services at the Airport. See Real , 603 F.2d at
755 ( no special skill requir ed where services “consist[ed] primarily of physical
labor”); Donovan v. Sureway Cleaners , 656 F.2d 1368, 1372 (9th Cir. 1981) ( no
special skill required where workers could be “completely trained in five days”)

.

3 AAA Cab retained a percentage of the fare when a passenger paid with a credit card using a credit card machine provided by AAA Cab. In addition, the Airport charged AAA Cab a $1.00 fee for each fare that the D rivers initiated at the Airport; AAA Cab collected that fee from the Drivers and paid it to the Airport.5

(5) The working relationship was often len gthy . Although Drivers could
take prolonged vacations, those who did usually hired relief drivers to cover their

taxicabs in their absence.
(6) T he service rendered by the Drivers was an integral part of AAA Cab’s
business of providing taxicab services a t the Airport.
Under the totality of the circumstances, the Drivers were not economically
dependent upon AAA Cab. See Real , 603 F.2d at 756 (“The test, as always, must
focus on the economic realities of the total circumstances.”). Rather, as a matter of
economic reality, they were in business for themselves when they leased their
taxicabs from AAA Cab and utilized them to earn a profit. Accordingly, the
district court properly held that, as a matter of law, the Drivers were not employees

under the FLSA a nd Arizona law.
Each party shall bear its own costs on appeal.

AFFIRMED.