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WO

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Kim Cramton,

Plaintiff,

v. 

Grabbagreen Franchising LLC, et al.,

Defendants.

No. CV-17-04663-PHX-DWL

ORDER 

Pending before the Court is Plaintiff Kim Cramton’s (“Cramton”) motion for 

summary judgment. (Doc. 440). For the following reasons, the motion is denied as to 

Count Four and granted as to Count Five.

RELEVANT BACKGROUND

The parties are familiar with the background details of this case, so only a brief 

recap is necessary here.

On December 15, 2017, Cramton initiated this action. (Doc. 1.) Cramton later filed 

an amended complaint, which is her operative pleading. (Doc. 88.)

On December 23, 2019, the Court issued an order addressing a variety of motions, 

including the parties’ cross-motions for summary judgment. (Doc. 247.) This order 

granted summary judgment on a number of claims and counterclaims, leaving only the

following claims for trial: (1) Cramton’s minimum-wage claim (Count Four) against Keely

Newman (“Keely”) and Grabbagreen Franchising LLC (“GFL”); (2) Cramton’s claim for 

breach of the promissory note (Count Five), limited to the issue of damages, against Eat 

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Clean Operations, LLC (“ECO”); and (3) Cramton’s claims for breach of the implied 

covenant of good faith and fair dealing, negligent misrepresentation, and fraud (Counts 

Seven, Nine, and Ten) against Keely and Eat Clean Holdings (“ECH”).

On January 31, 2020, ECO filed a notice “that on January 29, 2020 it filed a petition 

for bankruptcy with the United States Bankruptcy Court, Southern District of Florida.” 

(Doc. 254.) Based on this notice, the Court entered a stay as to Cramton’s claim in Count 

Five against ECO. (Doc. 255.)

On June 17, 2020, the remaining defendants (Keely, GFL, and ECH) filed a motion 

to strike Cramton’s jury demand, based on the presence of contractual jury waivers 

appearing in both the ECH operating agreement and the ECO promissory note. (Doc. 322.)

On October 2, 2020, the Court issued an order that, among other things, granted in 

part and denied in part the motion to strike Cramton’s jury demand. (Doc. 345 at 21-39.) 

Specifically, as for Count Four, the Court concluded that Cramton had waived her right to 

a jury trial as to Keely but not as to GFL. (Id. at 39.) As for Count Five, the Court did not 

resolve the waiver issue because “[t]hat claim has been stayed due to ECO’s bankruptcy.” 

(Id. at 33 n.16.) Finally, as for Counts Seven, Nine, and Ten, the Court concluded that 

Cramton had waived her right to a jury trial as to both Keely and ECH. (Id. at 39.) Given 

these rulings, and in light of other considerations (including that “the COVID-19 pandemic 

has made it very difficult to schedule civil jury trials”), the Court then severed Cramton’s 

minimum-wage claim in Count Four against GFL from the remaining unstayed claims and 

scheduled those claims for a bench trial. (Id.)

On May 24-28, 2021, the bench trial took place.

On June 23, 2021, the Court issued its findings of fact and conclusions of law. (Doc. 

429.) Those findings and conclusions are summarized as follows:

▪ Count Four (Minimum-Wage Claim Against Keely): As an initial matter, the 

Court noted that, although the parties stipulated that GFL qualified as Cramton’s employer, 

they disagreed about whether Keely should also be considered Cramton’s employer for 

purposes of the minimum-wage claim. (Id. at 19.) The Court resolved this issue in 

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Cramton’s favor, concluding that because Keely was the person responsible for hiring 

Cramton, served as Cramton’s boss, had the authority to set Cramton’s salary and the salary 

of other GFL employees, controlled Cramton’s schedule, and had the authority to reduce 

Cramton’s salary, “Keely qualifies as Cramton’s employer for purposes of Cramton’s work 

for GFL.” (Id. at 19, 26.)

Turning to the merits of the minimum-wage claim, the Court first ruled in Cramton’s 

favor as to the amount of hours she worked for GFL during the period in question, finding 

that “Cramton worked 140 hours in December 2016 for GFL (and Keely) and a total of 

1,583 hours from January to September 2017 for GFL (and Keely).” (Id. at 26.) In 

reaching this conclusion, the Court rejected, in its role as finder of fact, Keely’s attempts 

“to poke holes in Cramton’s showing on this point (by suggesting that she sometimes 

switched between work- and non-work-related activities on days she claimed to be working 

outside normal business hours and/or spent some of her time on [tasks associated with a 

different, non-GFL entity]).” (Id. at 19-20.)

Next, the Court made findings as to the amount of wages Cramton earned from GFL 

during the period in question. At trial, Keely proffered evidence suggesting that Cramton 

had received substantial compensation from GFL, but the Court disagreed in its role as 

finder of fact, adopting Cramton’s position that “the periodic payments Cramton received 

throughout 2017 were loan repayments on the ECO promissory note, not wage payments 

from GFL.” (Id. at 20-21.) This was true, the Court concluded, “even though the funds 

happened to come from GFL’s bank account.” (Id. at 20.)

Having concluded that Cramton worked a significant number of hours for GFL 

during the relevant period for no compensation, “[c]alculating the amount of minimum 

wages to which Cramton was entitled . . . [was] a matter of simple arithmetic—multiplying 

the number of hours worked by the applicable minimum wage.” (Id. at 26.) Those 

minimum wages amounted to $16,957, which became $50,871 after mandatory trebling. 

(Id. at 26-27.) Accordingly, the Court concluded that “as to Count Four, Keely is liable to 

Cramton for a total of $50,871.” (Id. at 27.)

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▪ Counts Seven, Nine, And Ten (Various Claims Against Keely and ECH): The 

Court ruled in Keely’s and ECH’s favor as to these claims. (Id. at 21-25, 27-28.)

On June 28, 2021, the Court issued an order requiring the parties to meet and confer 

and then file a joint statement setting forth their views about how to proceed on the 

remaining claims that hadn’t been resolved during the bench trial (Count Four against GFL 

and Count Five against ECO). (Doc. 430.)

On July 12, 2021, the parties filed the joint statement. (Doc. 432.) Among other 

things, it revealed that ECO’s bankruptcy proceeding had ended. (Id.)

On July 26, 2021, the Court issued an order in response to the parties’ joint 

statement. (Doc. 434.) As for Count Five, the Court lifted the stay and set a deadline by 

which Cramton could either file a motion for summary judgment or move to voluntarily 

dismiss. (Id. at 1-3.) As for Count Four, the Court addressed the parties’ dueling 

suggestions, found them wanting, and concluded that, “[b]ecause neither side is willing to 

compromise, it appears the Court is left with no choice but to schedule a jury trial on Count 

Four.” (Id. at 3-5.) However, following the issuance of this order, Cramton sought leave 

to include briefing related to Count Four in the summary judgment motion she would be 

filing as to Count Five. (Doc. 436.) This request was granted. (Doc. 437.)

On August 23, 2021, Cramton filed the summary judgment motion. (Doc. 440.)

On September 7, 2021, GFL and ECO filed a response. (Doc. 442.)1

On September 22, 2021, Cramton filed a reply. (Doc. 443.)

DISCUSSION

I. Legal Standard

“The court shall grant summary judgment if [a] movant shows that there is no 

genuine dispute as to any material fact and the movant is entitled to judgment as a matter 

of law.” Fed. R. Civ. P. 56(a). “A fact is ‘material’ only if it might affect the outcome of 

the case, and a dispute is ‘genuine’ only if a reasonable trier of fact could resolve the issue 

in the non-movant’s favor.” Fresno Motors, LLC v. Mercedes Benz USA, LLC, 771 F.3d 

1 GFL and ECO requested oral argument, but this request is denied because the issues 

are fully briefed and argument would not aid the decisional process. LRCiv 7.2(f).

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1119, 1125 (9th Cir. 2014). The court “must view the evidence in the light most favorable 

to the nonmoving party and draw all reasonable inference[s] in the nonmoving party’s 

favor.” Rookaird v. BNSF Ry. Co., 908 F.3d 451, 459 (9th Cir. 2018). “Summary judgment 

is improper where divergent ultimate inferences may reasonably be drawn from the 

undisputed facts.” Fresno Motors, 771 F.3d at 1125 (internal quotation marks omitted).

A party moving for summary judgment “bears the initial responsibility of informing 

the district court of the basis for its motion, and identifying those portions of ‘the pleadings, 

depositions, answers to interrogatories, and admissions on file, together with the affidavits, 

if any,’ which it believes demonstrate the absence of a genuine issue of material fact.” 

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “In order to carry its burden of 

production, the moving party must either produce evidence negating an essential element 

of the nonmoving party’s claim or defense or show that the nonmoving party does not have 

enough evidence of an essential element to carry its ultimate burden of persuasion at trial.” 

Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000). “If . . . 

[the] moving party carries its burden of production, the nonmoving party must produce 

evidence to support its claim or defense.” Id. at 1103.

“If the nonmoving party fails to produce enough evidence to create a genuine issue 

of material fact, the moving party wins the motion for summary judgment.” Id. There is 

no issue for trial unless enough evidence favors the non-moving party. Anderson v. Liberty 

Lobby, Inc., 477 U.S. 242, 249 (1986). “If the evidence is merely colorable or is not 

significantly probative, summary judgment may be granted.” Id. at 249-50 (citations 

omitted). At the same time, the evidence of the non-movant is “to be believed, and all 

justifiable inferences are to be drawn in his favor.” Id. at 255. “[I]n ruling on a motion for 

summary judgment, the judge must view the evidence presented through the prism of the 

substantive evidentiary burden.” Id. at 254. Thus, “the trial judge’s summary judgment 

inquiry as to whether a genuine issue exists will be whether the evidence presented is such 

that a jury applying that evidentiary standard could reasonably find for either the plaintiff 

or the defendant.” Id. at 255.

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II. Count Four

A. Background

In Count Four, Cramton asserts a minimum-wage claim against GFL and Keely. 

As discussed above, the Court previously concluded that Cramton had waived her 

right to a jury trial on this claim as to Keely (but not GFL) and then severed the claims so 

the bench trial against Keely could go first.

Following the bench trial, the Court ruled in Cramton’s favor, concluding that 

Cramton had worked 1,723 hours for GFL between December 2016 and September 2017; 

that Cramton received no wages from GFL for this work (instead, the payments Cramton 

received during this period were repayments on the ECO note); that the minimum wage to 

which Cramton was entitled for these unpaid hours was $16,957 (which, after mandatory 

trebling, amounted to $50,871); and that Keely was individually liable for the resulting 

award because, under Arizona’s minimum wage statute, the definition of “employer” 

includes not only entities (i.e., GFL) but individual managerial employees of those entities 

who exercise a sufficient degree of control over other employees’ wages and schedules

(i.e., Keely).

B. The Parties’ Arguments

Cramton now moves for summary judgment on her minimum-wage claim in Count 

Four as to GFL. (Doc. 440 at 2-3.) The Court construes Cramton’s rather terse briefing 

on this issue, which occupies only a page and a half of her motion, as identifying three 

reasons why summary judgment should be granted in her favor. First, Cramton argues

(without citing any case law) that, because the parties previously stipulated that GFL served 

as her employer and the Court found following the bench trial that she did not receive any 

wages for her work for GFL during the relevant period, it follows that she is entitled to 

summary judgment on her minimum-wage claim against GFL. (Id.) Second, Cramton 

argues (again without citing any case law) that because the Court found following the 

bench trial that Keely qualified as her employer, “Keely Newman’s actions bound GFL as 

well.” (Id. at 3.) Third, Cramton argues that, because a corporate officer with operational 

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control over an entity and the entity are considered jointly and severally liable for an award

of unpaid wages under the FLSA, it follows that joint-and-several liability should also be 

the rule under Arizona’s minimum wage statute. (Id.) In support of this argument, 

Cramton cites Boucher v. Shaw, 572 F.3d 1087 (9th Cir. 2009).

GFL opposes Cramton’s motion. (Doc. 442.) First, GFL argues that any claim for 

joint-and-several liability as to Count Four has been waived because there is “no mention 

of joint and several or vicarious liability of GFL, GGS (a non-party) or Keely anywhere in 

Cramton’s pleadings, [MIDP disclosures], or the [joint final pretrial order].” (Id. at 1, 4.) 

Second, GFL argues that an array of disputed issues of fact—including the amount of hours 

Cramton worked for GFL and whether the payments that Cramton received during the 

relevant period should be credited to GFL or ECO—preclude the entry of summary 

judgment in Cramton’s favor on Count Four. (Id. at 1-2, 4-16.) In a related vein, GFL 

argues that although the Court may have resolved those disputed issues against Keely and 

in Cramton’s favor during the bench trial, Cramton previously “insisted that GFL’s trial be 

a separate jury trial” and GFL is thus entitled to “a trial to be heard in its own defense.” 

(Id. at 4-5.) Third, GFL argues that Cramton’s reliance on cases construing the FLSA is 

misplaced because “[t]he FLSA does not govern liability under Count IV, rather Arizona 

law does. No authority under Arizona law has been cited by Cramton in her motion for the 

proposition that GFL is jointly and severally liable with Keely. The default under Arizona 

law is several liability in general and Arizona law makes it very clear that the Arizona 

Limited Liability Company Act . . . is controlling here which expressly provides a broad, 

impervious liability shield for members and managers of a limited liability company.” (Id.

at 2.)

In reply, Cramton accuses GFL of “improperly attempt[ing] to re-litigate the merits 

of [her] minimum wage claim . . . after a trial on the merits” and of attempting to “turn the 

rules of the preclusive effect of prior litigation on their head.” (Doc. 443 at 1-2.) According 

to Cramton, the summary judgment analysis should be guided by the “notion that if Keely 

Newman is liable for the failure to pay minimum wage to Cramton, then [GFL] must also 

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be liable by virtue of being Cramton’s undisputed employer.” (Id. at 2.) Cramton argues 

that the application of this principle is compelled not only by the FLSA (which provides 

guidance when construing Arizona’s minimum wage statute), but also by Arizona’s jointand-several liability statute and Arizona’s common law of agency. (Id. at 2-4.) Finally, 

Cramton contends that GFL’s reliance on the Arizona Limited Liability Company Act is 

misplaced because that statute “makes it explicit that an LLC’s managers are its agents, 

and bind the company.” (Id. at 4-5.)

C. Analysis

Cramton’s motion for summary judgment on Count Four as to GFL is denied. As 

an initial matter, although Cramton places heavy emphasis on the fact that GFL previously 

stipulated that it served as her “employer,” this stipulation only begs the question of 

whether GFL, in its undisputed role as her employer, failed to pay her a minimum wage in 

violation of Arizona’s minimum wage statute.

On that issue, Cramton seems to contend that, because the Court made factual 

findings in her favor during the bench trial as to the number of hours she worked for GFL 

during the relevant period (1,723), the amount of wages she earned from GFL for this work 

($0), and whether Keely also served as her “employer” (yes), those findings are now 

entitled to “preclusive effect” for purposes of her claim in Count Four against GFL. (Doc. 

440 at 2-3; Doc. 443 at 1.) The difficulty with this argument is that GFL wasn’t a party to 

the bench trial. Cramton has not identified any authority suggesting that the factual 

findings made against one defendant during a bench trial are binding against a co-defendant 

that is entitled to a jury trial on the same issues as part of the same case. Although the 

Court, in its role as finder of fact during the bench trial, may have resolved the disputed 

evidence in Cramton’s favor on the issues of how much she worked for GFL, how much 

she was paid by GFL, and whether Keely qualified as her employer, this outcome should 

not obscure the fact that the evidence on those points was (and remains) disputed. It is 

possible that a different factfinder—in this case, a jury—might reach different 

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conclusions.

2

The parties also spill much ink debating whether joint-and-several liability should 

apply when a corporate officer and corporate entity are both deemed liable for the failure 

to pay minimum wages. (Although this is the rule under the FLSA, the parties dispute 

whether it is also the rule under Arizona’s minimum wage statute.) In the Court’s view, 

this debate is premature. Courts only address the question of joint-and-several liability 

after there has been a determination that two or more defendants are liable for the 

underlying injury. Cf. Schmidt v. Ramsey, 860 F.3d 1038, 1051 (8th Cir. 2017) (“Joint and 

several liability, after all, does not allow a non-negligent person to be found negligent—it 

merely allows more than one negligent person to be found legally responsible for 100 

percent of a jointly caused injury.”). Cramton is thus attempting to put the cart before the 

horse—she seeks to hold GFL jointly and severally liable for a damage award imposed 

against Keely before there has been an adjudication of GFL’s liability.

The authorities cited by Cramton do not compel a different conclusion. In Boucher 

v. Shaw, 572 F.3d 1087 (9th Cir. 2009), the only mention of joint-and-several liability 

appears in the court’s parenthetical summary of Donovan v. Agnew, 712 F.3d 1509 (1st 

2 Although the phrase “collateral estoppel” does not appear anywhere in Cramton’s 

motion or reply, it is possible she was attempting to argue that GFL should be estopped 

from relitigating the factual issues that were resolved in her favor during the bench trial. 

To the extent this was Cramton’s intended argument, it fails. Assuming without deciding 

that Arizona’s rules of collateral estoppel would apply in this circumstance, “[c]ollateral 

estoppel, or issue preclusion, binds a party to a decision on an issue litigated in a previous 

lawsuit if the following factors are satisfied: (1) the issue was actually litigated in the 

previous proceeding, (2) the parties had a full and fair opportunity and motive to litigate 

the issue, (3) a valid and final decision on the merits was entered, (4) resolution of the issue 

was essential to the decision, and (5) there is common identity of the parties.” Campbell 

v. SZL Properties, Ltd., 62 P.3d 966, 968 (Ariz. Ct. App. 2003). As an initial matter, it is 

not clear that the third element is satisfied here—Cramton’s victory over Keely on the 

minimum-wage claim during the bench trial may not qualify as a “final decision on the 

merits” because the Court has not yet entered judgment on that claim. Cf. Avco Corp. v. 

Crews, 76 F. Supp. 3d 1161, 1167-68 (W.D. Wash. 2015) (declining to apply collateral 

estoppel and impose joint-and-several liability based on a liability finding in a prior case, 

where the party found liable entered into a settlement before judgment was entered, 

because “this Court looks for entered judgments, and not rulings concerning fault”). More 

important, Cramton has not established that the fifth element (“common identity of the 

parties”) is satisfied, as GFL did not participate in the bench trial. Campbell, 62 P.3d at 

968 (“Offensive use of collateral estoppel occurs when a plaintiff seeks to prevent the 

defendant from relitigating an issue the defendant previously litigated unsuccessfully in an 

action with another party.”).

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Cir. 1983). In Donovan, in turn, the First Circuit merely observed that “[t]he overwhelming 

weight of authority is that a corporate officer with operational control of a corporation’s 

covered enterprise is an employer along with the corporation, jointly and severally liable 

under the FLSA for unpaid wages,” before affirming the district court’s conclusion that 

two “corporate officers with a substantial ownership interest in the corporation who are 

directly involved in decisions affecting employee compensation may be held personally 

liable for the corporation’s failure to pay minimum and overtime wages as required under 

the FLSA.” Id. at 1511, 1514. Notably, the Donovan court had no reason to consider 

whether the corporation should also be held liable for the unpaid wages (let alone whether 

that liability should be joint and several with the individual officers’ liability). This was 

because the corporation declared bankruptcy midway through the case, resulting in the 

dismissal of the claim against it. Id. at 1510.

Meanwhile, the Arizona authorities cited for the first time in Cramton’s reply

suggest, at most, that when a corporate officer and corporation are both found liable for an 

injury caused by conduct undertaken by the officer while acting as an agent of the 

corporation, the two defendants should be deemed jointly and severally liable for the 

resulting damage award. Higgins v. Assmann Elecs., Inc., 173 P.3d 453, 459 (Ariz. Ct. 

App. 2007) (“The jury returned a $400,000 verdict against Assmann [corporation] for 

wrongful termination and a $300,000 verdict against Meyer [corporate vice president] for 

the same claim. The trial court, however, corrected this by holding Assmann and Meyer 

jointly and severally liable for a $300,000 wrongful termination judgment. Assmann 

argues that the trial court abused its discretion by amending the verdict and denying a new 

trial. Assmann provides no authority for this argument. The imposition of a joint and 

several judgment was appropriate under A.R.S. § 12-2506(D).”); Warner v. Southwest 

Desert Images, LLC, 180 P.3d 986, 991-92 (Ariz. Ct. App. 2008) (where trial court granted 

summary judgment in the plaintiff’s favor on the issue of liability against a corporate 

officer, the officer was acting as the corporation’s agent, and the jury ultimately awarded 

damages against the corporation, the officer and corporation should be held jointly and 

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severally liable for the resulting award); A.R.S. § 12-2506(D)(2) (“The liability of each 

defendant is several only and is not joint, except that a party is responsible for the fault of 

another person . . . if . . . [t]he other person was acting as an agent or servant of the party.”). 

But again, that is not the scenario here—GFL has not yet been found liable.

Given this backdrop, and because the parties have been unable to agree to an 

alternative process for resolving the claim, the time has come to schedule a jury trial on 

Cramton’s claim in Count Four against GFL. If the jury renders a verdict in Cramton’s 

favor in the same amount that was awarded following the bench trial, the parties can then

address, in post-trial briefing, whether Keely’s and GFL’s liability should be joint and 

several.3 If the jury returns a verdict in Cramton’s favor but in a different amount than was 

awarded following the bench trial, the parties may also need to address how (or whether) 

the damage awards may be reconciled, as occurred in Higgins. And if the jury returns a 

verdict in GFL’s favor, there will be an entirely more complicated issue of inconsistent 

verdicts that will need to be addressed at that time.

Of course, Cramton may choose to avoid these complications (as well as the time 

and expense associated with a jury trial) by choosing not to pursue her minimum-wage 

claim against GFL. Cramton has already prevailed on that claim as to Keely, it is unclear 

to the Court whether GFL has any assets that might be used to satisfy a future judgment—

according to the records cited in Cramton’s brief (Doc. 443 at 4), GFL is now an inactive

entity—and a jury trial could result in an inconsistent verdict that could, in turn, call into 

question the validity of Cramton’s previous bench-trial victory against Keely. But that is 

Cramton’s choice to make. It appears she was previously given the option to try her 

minimum-wage claim against GFL as part of the bench trial but declined that offer. (Doc. 

3 The Court notes that, although GFL specifically argued in its response that Cramton 

forfeited her ability to seek joint-and-several liability by failing to disclose that theory of 

liability in her complaint, her MIDP disclosures, or the final joint pretrial order (Doc. 442 

at 1,4 ), Cramton made no effort to address GFL’s forfeiture argument in her reply. This 

omission provides an additional reason to deny summary judgment on the current record—

it is not the Court’s role, at summary judgment, to hunt through the record to determine 

whether there was adequate disclosure of the proffered theory of liability (and, if not, to

determine sua sponte whether there are reasons to overlook the alleged disclosure 

violation).

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432 at 8.) This choice helps account for the current state of affairs.

III. Count Five

A. Background

In Count Five, Cramton asserts a claim against ECO for breach of contract—

specifically, for failure to repay a promissory note.

As discussed above, in the December 2019 summary judgment order, the Court 

granted summary judgment to Cramton on this claim, but only as to liability. (Doc. 247 at 

46-47 & n.23.)

As for the damages associated with Count Five, the parties took unusual positions

in their earlier summary judgment briefing. Cramton, who might be expected to argue for 

the largest possible damage award associated with this claim, took the position that 

although the original balance of the ECO note was $66,527, the “various payments” she 

received throughout 2017 were ECO note repayments that had the effect of reducing the 

outstanding balance to $23,017.12. (Doc. 142 at 10-11.) Meanwhile, ECO denied that any 

of the payments Cramton received in 2017 were ECO note repayments—it took the 

position that all of the payments were GFL wage payments and that the outstanding balance 

of the note thus remained $66,527. (Doc. 158 at 8-12.)

At any rate, in January 2020, soon after the issuance of the summary judgment 

ruling, ECO filed a notice indicating that it had filed for bankruptcy. (Doc. 254.) In 

response, the Court imposed a stay as to Count Five. (Doc. 255.) The stay remained in 

place during the bench trial, so Count Five was not resolved as part of that proceeding. 

Nevertheless, as discussed above, the parties presented extensive evidence during the 

bench trial about the nature of the payments Cramton received during 2017, and the Court 

ultimately accepted (in its role as finder of fact) Cramton’s position that the payments 

constituted ECO loan repayments that reduced the outstanding balance on the ECO note to 

$23,017.12.

After the conclusion of the bench trial, the parties informed that Court that ECO’s 

bankruptcy proceeding was complete. (Doc. 432.) In response, the Court lifted the stay as 

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to Count Five. (Doc. 434.)

B. The Parties’ Arguments

Cramton now moves for summary judgment “that the amount of damages for Count 

Five . . . should be $23,017.12.” (Doc. 440 at 2.) As an initial matter, Cramton argues that 

the earlier bankruptcy proceeding has no bearing on her ability to pursue summary 

judgment on Count Five because the entity that filed for bankruptcy was not ECO (i.e.,

“Eat Clean Operations, LLC”)—rather, the bankruptcy petition was filed by a similarly

named, but distinct, entity named “ECO, LLC” that “does not have any connection to Eat 

Clean Operations, LLC.” (Id. at 3-5.) Alternatively, Cramton argues that even if ECO was 

the entity that filed the bankruptcy petition, this would not interfere with her ability to 

pursue Claim Five now that the bankruptcy stay has been lifted because “only individuals 

can obtain a discharge” in a Chapter 7 bankruptcy proceeding and ECO “never obtained 

one in the bankruptcy.” (Id. at 5-6.) Cramton also argues that, although ECO has now 

filed articles of termination, this “dissolution does not exempt it from liability” under 

A.R.S. § 29-3704(D) because ECO’s liability for Count Five was contingent as of the date 

of dissolution. (Id. at 6-7.) Finally, Cramton argues that the undisputed evidence 

establishes that the amount of damages associated with Count Five is $23,017.12. (Id. at 

7-9.) Elsewhere, Cramton explains that although she does not actually expect to collect 

any money from ECO, in part because ECO “conveniently, does not have the assets to pay 

this Note,” she intends to proffer the judgment she hopes to obtain in this case in support 

of a fraudulent-transfer claim she has asserted in a separate state-court case. (Id. 3-4, 9 

n.5.)

ECO’s response touches upon Count Five in only cursory fashion. (Doc. 442 at 16-

17.) Notably, ECO does not address Cramton’s contention that it wasn’t the entity that 

filed the bankruptcy petition in 2020. Nor does ECO address Cramton’s arguments 

concerning the non-availability of a discharge to a corporate debtor in a Chapter 7 

bankruptcy proceeding, the survival of ECO’s debt to Cramton under Arizona law 

notwithstanding ECO’s dissolution, or the lack of factual dispute as to the amount still 

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owed on the ECO note. Instead, ECO simply attempts to incorporate, by reference, the 

legal arguments set forth in the July 2021 joint statement. Specifically, ECO argues that 

“Florida law applies to anyone Cramton wants to assert new fictional and harassing claims 

against” and that “a bankruptcy trustee has the exclusive authority to pursue fraudulent 

transfer and other ‘choses in action’ for the benefit of all creditors and Cramton has no 

standing to pursue purported ECO’s transfers.” (Id.)

In reply, Cramton emphasizes that ECO failed to respond to most of the arguments 

set forth in her motion and contends that ECO’s arguments about fraudulent-transfer law 

are irrelevant because they “will be addressed in the state court proceeding.” (Doc. 443 at 

5-7.)

C. Analysis

Cramton is entitled to summary judgment on Count Five. To prevail on a breachof-contract claim under Arizona law, “the plaintiff has the burden of proving the existence 

of a contract, breach of the contract, and resulting damages.” Chartone, Inc. v. Bernini, 83 

P.3d 1103, 1111 (Ariz. Ct. App. 2004). The Court already decided the first two elements 

in Cramton’s favor in the December 2019 summary judgment ruling, so the only remaining 

element is damages.

As for the amount of damages, Cramton proffers evidence that the outstanding 

balance on the ECO note is $23,017.12. ECO, in turn, makes no effort to dispute this 

figure. This alone justifies ruling in Cramton’s favor. See Fed. R. Civ. P. 56(e)(2) (“If a 

party . . . fails to properly address another party’s assertion of fact as required by Rule 

56(c), the court may . . . consider the fact undisputed for purposes of the motion.”). At any 

rate, Cramton’s calculation is actually favorable to ECO, which previously took the 

position that none of the payments Cramton received in 2017 were ECO note repayments 

and that the unpaid balance of the note therefore remained $66,527. (Doc. 158 at 8-12.) 

Under these circumstances, ECO can hardly complain about the selection of Cramton’s 

lower figure.

Finally, the few arguments that ECO chooses to raise in its response have no bearing 

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on Cramton’s entitlement to summary judgment on Count Five. Even assuming that ECO 

was the entity that filed for Chapter 7 bankruptcy in January 2020, ECO’s debt to Cramton 

was not discharged via the bankruptcy process. NLRB v. Better Bldg. Supply Corp., 837 

F.2d 377, 378-79 (9th Cir. 1988) (emphasizing that “corporations may not discharge their 

debts in a liquidation proceeding under Chapter 7 of the Code” and rejecting the argument 

that “[c]orporate debt cannot survive Chapter 7 proceedings”). Cf. Contreras v. Corinthian 

Vigor Ins. Brokerage, Inc., 103 F. Supp. 2d 1180, 1183-84 (N.D. Cal. 2000) (“A 

corporation that has been liquidated pursuant to Chapter 7 of the Bankruptcy Code does 

not receive a discharge from debt. In addition, any dissolution of a corporation must be 

effectuated under state law, since the Bankruptcy Code does not provide for the dissolution 

of corporations. . . . Even if Corinthian has been dissolved, California law provides that a 

corporation continues to exist even after dissolution for the purposes of . . . causes of action 

against dissolved corporations. Therefore, Corinthian’s status as ‘out of business and 

inactive’ does not insulate it from the present action.”). Additionally, although ECO raises 

questions about whether Cramton will be able to use a judgment obtained against ECO in 

this action to obtain relief in a separate fraudulent-transfer action against different entities 

and individuals, such questions are irrelevant for present purposes—they will be resolved, 

if at all, at a different time in a different proceeding by a different judge. For now, it is 

enough to say that Cramton is entitled to summary judgment on Count Five against ECO 

in the amount of $23,017.12.

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Accordingly,

IT IS ORDERED that Cramton’s motion for summary judgment (Doc. 440) is 

granted in part and denied in part.

IT IS FURTHER ORDERED that Cramton must file a notice, with one week of 

the issuance of this order, specifying how she intends to proceed on her claim in Count 

Four against GFL.

Dated this 14th day of October, 2021.

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