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WO 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Michael Vail, et al., 

Plaintiffs, 

v. 

Kopper Crest Manor on Harris LLC, et al., 

Defendants.

No. CV-18-00908-PHX-GMS

ORDER 

Kopper Crest Manor on Harris LLC and 

Debera L. Kopp, 

Counterclaimants, 

v. 

Michael Vail and Sarah Gulley, 

Counterdefendants.

 Pending before the Court is the Motion for Summary Judgment of Plaintiffs Michael 

Vail and Sarah Gulley (Doc. 54). Plaintiffs move for summary judgment on their own 

claims as well as the counterclaim of Defendant Debera L. Kopp. For the following reasons 

the motion is granted.1

BACKGROUND 

Debera Kopp is the sole owner of Kopper Crest Manor on Harris LLC, a care center 

for the elderly. Michael Vail and Sarah Gulley allege that they were full-time employees 

 

1

 Defendant has requested a hearing. The request is denied. The parties have thoroughly discussed the law and the evidence, and oral argument will not aid the Court’s decision. See Lake at Las Vegas Investors Group, Inc. v. Pac. Malibu Dev., 933 F.2d 724, 729 (9th 

Cir. 1991). 
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of Ms. Kopp’s company. They allege that they performed a total of 219 hours of work for 

the company between December 29, 2017 and February 9, 2018 but were not compensated 

in any way. Vail and Gulley filed this action against both Ms. Kopp and Kopper Crest 

Manor LLC, alleging violations of the Fair Labor Standards Act (“FLSA”), the Arizona 

Minimum Wage Statute, and the Arizona Wage Statute. Ms. Kopp brought a counterclaim 

that included a single count of “civil conversion/theft.” (Doc. 25 at 16.) 

On December 4, 2018, Plaintiffs served their First Set of Requests for Admissions 

(“RFAs”). A telephonic hearing was later held before the Court on February 8, 2019, 

during which Ms. Kopp avowed that the email address to which the RFAs were sent had 

been hacked and that she had not received them, either through email or physical mail. Ms. 

Kopp stated that she had “changed [her] email.” (Doc. 66 at 5.) 

Plaintiffs now move for summary judgment on their claims and on Ms. Kopp’s 

counterclaim. They contend that Ms. Kopp failed to respond to the RFAs, and she is 

therefore deemed as having admitted the statements in the RFAs. Plaintiffs’ Motion relies 

on those admissions to show that there are no disputes of material fact and that they are 

entitled to summary judgment. 

DISCUSSION

I. Legal Standard 

A principal purpose of summary judgment is to identify factually unsupported 

claims and dispose of them. Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986). 

Summary judgment is appropriate if the evidence, viewed in the light most favorable to the 

nonmoving party, shows “that there is no genuine issue as to any material fact and that the 

movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). Only disputes 

over facts that might affect the outcome of the suit will preclude the entry of summary 

judgment, and the disputed evidence must be “such that a reasonable jury could return a 

verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 

(1986). 

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“[A] party seeking summary judgment always bears the initial responsibility of 

informing the district court of the basis for its motion and identifying those portions of [the 

record] which it believes demonstrate the absence of a genuine issue of material fact.” 

Celotex, 477 U.S. at 323. Parties opposing summary judgment are then required to “cit[e] 

to particular parts of materials in the record” that either establish a genuine dispute or 

“show[] that the materials cited do not establish the absence . . . of a genuine dispute.” Fed. 

R. Civ. Pro. 56(c)(1). If the non-moving party’s opposition fails to do so, the court is not 

required to comb through the record on its own to come up with reasons to deny a motion 

for summary judgment. Carmen v. S.F. Unified Sch. Dist., 237 F.3d 1026, 1029 (9th Cir. 

2001) (citing Forsberg v. Pacific N.W. Bell Tel. Co., 840 F.2d 1409, 1418 (9th Cir. 1988)). 

II. Analysis 

Plaintiffs’ motion hinges on whether Ms. Kopp admitted the statements contained 

in the RFAs. As explained in the Court’s prior order, Ms. Kopp is deemed to have done 

so. That being the case, she has admitted almost all of the elements required to prove 

Plaintiffs claims against her, and Plaintiffs are entitled to judgment in their favor on their 

FLSA claim and their two Arizona state law claims. Similarly, Ms. Kopp is deemed to 

have admitted facts that demonstrate that Plaintiffs are entitled to judgment in their favor 

on Kopp’s counterclaim. 

A. Plaintiffs are entitled to summary judgment on their FLSA claim. 

The Fair Labor Standards Act mandates the payment of a minimum wage for work 

performed. See 29 U.S.C. § 206; Probert v. Family Centered Services of Alaska, Inc., 651 

F.3d 1007, 1009 (9th Cir. 2011). “An FLSA claim has three elements: . . . (1) plaintiff was 

employed by defendant during the relevant period; (2) plaintiff was a covered employee; 

and (3) the defendant failed to pay plaintiff minimum wage and/or overtime pay.” 

Quinonez v. Reliable Auto Glass, LLC, No. CV-12-000452-PHX-GMS, 2012 WL 

2848426, at *1–*2 (D. Ariz. July 11, 2012) (alterations omitted). 

Defendant’s admissions establish most of the elements of Plaintiffs’ FLSA claim. 

Ms. Kopp admits that she employed Plaintiffs and that she failed to pay them the applicable 
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minimum wage—indeed, she admits that she failed to pay them any wages at all for 219 

hours of work performed by each. (Doc. 55-3 at 15–16.) 

But Plaintiff did not explicitly admit, by failing to respond to the RFAs, that 

Plaintiffs were “covered employees.” However, the evidence fails to disclose a dispute of 

fact on this point. The FLSA’s minimum wage requirement applies to “each . . . employee[] 

who in any workweek is engaged in commerce or in the production of goods for commerce, 

or is employed in an enterprise engaged in commerce or in the production of goods for 

commerce.” 29 U.S.C. § 206(a). Thus, coverage under the Act may be established either 

by showing “individual coverage” or “enterprise coverage.” Tony & Susan Alamo Found. 

v. Sec’y of Labor, 471 U.S. 290, 306 n.8 (1985); Chao v. A-One Medical Services, Inc., 

346 F.3d 908, 914 (9th Cir. 2003). The FLSA definition of an “enterprise engaged in 

commerce” includes entities “that . . . [are] engaged in the operation of . . . an institution 

primarily engaged in the care of the sick, the aged, or the mentally ill or defective who 

reside on the premises of such institution.” Id. § 203(s)(1). Ms. Kopp admitted in her 

Answer that Kopper Crest Manor is an assisted living facility for the elderly. (Doc. 14 at 

5.) She also admitted, by failing to respond to Plaintiffs’ RFAs, that she owns Kopper 

Crest Manor, and that the company employed the Plaintiffs. There is therefore no dispute 

of fact over whether Plaintiffs were employees covered by the FLSA’s minimum wage 

requirements. 

Since Ms. Kopp has admitted that (1) she employed Plaintiffs through her company, 

(2) her company qualifies as an “enterprise engaged in commerce” under the FLSA, and 

(3) she did not pay Plaintiffs for the work they performed, there are no disputes of material 

fact regarding Plaintiffs’ FLSA claim, and they are entitled to judgment as a matter of law. 

Summary judgment is therefore granted in Plaintiffs’ favor on the FLSA minimum wage 

claim. 

B. Plaintiffs are entitled to judgment in their favor on their Arizona 

Minimum Wage Statute claim. 

Arizona law requires that “employers shall pay employees no less than the minimum 

wage,” set forth in the statute. Ariz. Rev. Stat. § 23-363(A). Ms. Kopp, as outlined above, 
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admitted to employing both Plaintiffs. She also admitted that she failed to pay either of 

them for 219 hours of work. She therefore failed to pay them the minimum wage required 

under the statute. There are no disputes of material facts regarding this claim and Plaintiffs 

are entitled to judgment in their favor. Summary judgment is therefore granted. 

C. Plaintiffs are entitled to judgment in their favor on their Arizona Wage Statute claim. 

The Arizona Wage Statute forbids employers from withholding or diverting “any 

portion of an employee’s wages” unless one of three exceptions applies. Ariz. Rev. Stat. 

§ 23-352. Ms. Kopp admits that she did not pay Plaintiffs for any of the hours worked and 

fails to point to any evidence showing that any of the three exceptions from section 23-352 

apply. Plaintiffs are therefore entitled to judgment in their favor on this claim. 

D. Plaintiffs are entitled to judgment in their favor on Ms. Kopp’s counterclaim for conversion. 

In Arizona, “[c]onversion is an intentional exercise of dominion or control over a 

chattel which so seriously interferes with the right of another to control it that the actor 

may justly be required to pay the other the full value of the chattel.” Strawberry Water Co. 

v. Paulsen, 220 Ariz. 401, 406, 207 P.3d 654, 659 (Ariz. Ct. App. 2008) (citation, internal 

quotation marks, and alteration omitted). “To maintain an action for conversion, a plaintiff 

must have had the right to immediate possession of the personal property at the time of the 

alleged conversion.” Case Corp. Gehrke, 208 Ariz. 140, 143, 91 P.3d 362, 165 (Ariz. Ct. 

App. 2004). 

Here, Ms. Kopp’s counterclaim alleges that Plaintiffs took various property 

belonging to her. (Doc. 25 at 14–15.) She also alleges that Plaintiffs “commandeered” her 

1997 Toyota Camry. However, by failing to respond to the RFAs Ms. Kopp has admitted 

that she did not own the Camry and that Plaintiffs did not unlawfully take any other 

property from her. (Doc. 55-3 at 16–17.) She additionally admits that she filed a police 

report against Plaintiffs regarding the Camry because they filed this action against her. (Id.

at 15.) Ms. Kopp’s counterclaim therefore fails as a matter of law and Plaintiffs are entitled 

to judgment in their favor. 
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E. Plaintiffs are entitled to treble damages, interest, attorneys’ fees, and 

costs. 

Under the Arizona Wage Statute, “if an employer, . . . fails to pay wages due any 

employee, the employee may recover in a civil action against an employer or former 

employer an amount that is treble the amount of the unpaid wages.” Ariz. Rev. Stat. § 23-

355(A). The Arizona minimum wage for the applicable period was $10.50. See Ariz. Rev. 

Stat. § 23-363(A)(2). Ms. Kopp admits that each Plaintiff worked 219 hours for which she 

never paid the wages due to them. Under the Arizona statute, then, each Plaintiff is entitled 

to recover $6,898.50. 

Additionally, 29 U.S.C. § 216 provides that courts presiding over FLSA actions 

“shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable 

attorney’s fee to be paid by the defendant, and costs of the action.” 29 U.S.C. § 216(b). 

The award of attorneys’ fees under § 216 is mandatory, but “the amount awarded is within 

the discretion of the court. Orozco v. Borenstein, No. CV-11-02305-PHX-FJM, 2013 WL 

4543836, at *2 (D. Ariz. Aug. 28, 2013) (citing Houser v. Matson, 447 F.2d 860, 863 (9th 

Cir. 1971)). In addition to fees and costs, Plaintiffs are also entitled to interest under Ariz. 

Rev. Stat. § 23-364(g) (“Any employer who fails to pay the wages or earned paid sick time 

required under this article shall be required to pay the employee the balance of the wages 

or earned paid sick time owed, including interest thereon.”) (emphasis added). 

In sum, as the prevailing plaintiff under the FLSA and Arizona law, Plaintiffs are 

entitled to not only the damages stated above, but attorneys’ fees, costs, and interest in an 

amount to be determined upon a motion by Plaintiffs under L.R. Civ. 54.2. 

 IT IS THEREFORE ORDERED that the Motion for Summary Judgment of 

Plaintiffs Michael Vail and Sarah Gulley (Doc. 54) is GRANTED. 

/ / / 

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 IT IS FURTHER ORDERED directing the Clerk of Court to terminate this action 

against Defendant Debera L. Kopp and enter judgment accordingly. 

 Dated this 3rd day of July, 2019.