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PH I L L I P S DA Y E S

NATIONAL EMPLOYMENT LAW FIRM

A Professional Corporation

3101 North Central Avenue, Suite 1500

Phoenix, Arizona 85012

Telephone: 1-800-JOB-LAWS

docket@phillipsdayeslaw.com

TREY DAYES, No. 020805

SEAN DAVIS, No. 030754

(602) 288-1610 ext. 301

Attorneys for Plaintiff

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

Walter Dolan; 

 Plaintiff,

 vs.

World Wide Stone Corporation, Inc., a 

Nevada corporation; Frank Cunningham

and Jane Doe Cunningham, husband and 

wife; John Heck and Jane Doe Heck, 

husband and wife; Joel Allred and Jane 

Doe Allred, husband and wife

Case No.: ________________________

COMPLAINT

Plaintiff Walter Dolan, for his Complaint against Defendants, alleges as follows:

NATURE OF THE CASE

1. The Fair Labor Standards Act is designed to eliminate “labor conditions 

detrimental to the maintenance of the minimum standard of living necessary for health, 

efficiency and general well-being of workers.” 29 U.S.C. § 202(a). To achieve its goals, 

the FLSA sets minimum wage and overtime pay requirements for covered employers. See 

29 U.S.C. §§ 206(a), 207(a).

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Complaint Page 2

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2. Employers must compensate employees for all work that employers permit 

employees to perform. See 29 C.F.R. § 785.11. In such cases, it is the responsibility of 

employers’ management to ensure that work is not performed if management does not 

desire for such work to be performed. See 29 C.F.R. § 785.13. Employers may not accept 

the benefits of employees performing work without compensating the employees for their 

work. Id.

3. Plaintiff brings this action against Defendants for unlawful failure to pay 

overtime wages in direct violation of the Fair Labor Standards Act, 29 U.S.C. § 201 et 

seq. (“FLSA”).

4. Defendants had a consistent policy and practice of requiring its employees to 

work well in excess of forty (40) hours per week without paying them time and a half for 

hours worked over forty (40) hours per week.

5. Plaintiff seeks to recover unpaid overtime compensation and an equal amount 

of liquidated damages, including interest thereon, statutory penalties, attorneys’ fees, and 

costs pursuant to 29 U.S.C. § 216(b).

JURISDICTION AND VENUE

6. This Court has jurisdiction over the subject matter and the parties hereto 

pursuant to 29 U.S.C. § 216(b), and 28 U.S.C. § 1331.

7. Venue is proper under 28 U.S.C. § 1391(b) because Defendants reside within 

the State in which this District Court is located and because a substantial part of the 

events or omissions giving rise to this matter occurred in this District.

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Complaint Page 3

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8. The named Defendants, by virtue of their own acts and omissions or by 

virtue of the acts and omissions committed by one or more of their agents, employees or 

representatives, as described herein, have conducted business or caused events to occur 

within the District of Arizona and, more particularly, within Maricopa County, Arizona, 

as more particularly described herein so as to give rise to both subject matter and 

personal jurisdiction of this Court.

PARTIES

9. At all times material hereto, Plaintiff was a resident of Maricopa County, 

Arizona. 

10. At all times material hereto, World Wide Stone Corporation, Inc. was 

incorporated in the State of Nevada, with its principal place of business in Maricopa

County, Arizona.

11. Upon information and belief, at all times material hereto, Defendant Frank 

Cunningham, was and continues to be a resident of Maricopa County, Arizona.

12. Jane Doe Cunningham is Frank Cunningham’s wife. Frank and Jane Doe

Cunningham have caused events to take place giving rise to this Complaint as to which 

their marital community is fully liable.

13. Upon information and belief, at all times material hereto, Defendant John 

Heck, was and continues to be a resident of Maricopa County, Arizona.

14. Jane Doe Heck is John Heck’s wife. John and Jane Doe Heck have caused 

events to take place giving rise to this Complaint as to which their marital community is 

fully liable.

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15. Upon information and belief, at all times material hereto, Defendant Joel 

Allred, was and continues to be a resident of Maricopa County, Arizona.

16. Jane Doe Allred is Joel Allred’s wife. Joel and Jane Doe Allred have 

caused events to take place giving rise to this Complaint as to which their marital 

community is fully liable.

17. Upon information and belief, and consistent with the information available 

from the Arizona Corporation Commission, Defendants Frank Cunningham, John Heck, 

and Joel Allred were and are the owners of World Wide Stone Corporation, Inc.

18. At all relevant times, Plaintiff was an “employee” of Defendants, as defined 

by 29 U.S.C. § 203(e)(1). 

19. The provisions set forth in 29 U.S.C. § 207 of the FLSA apply to Defendants.

20. At all relevant times, each of the Defendants was and continues to be an 

“employer” as defined in 29 U.S.C. § 203(d).

21. Each of the Defendants should be deemed an “employer” for purposes of the 

FLSA including, without limitation, 29 U.S.C. § 216.

22. Defendant Frank Cunningham is deemed an “employer” for purposes of the 

FLSA, including, without limitation, 29 U.S.C. §216.

23. Defendant John Heck is deemed an “employer” for purposes of the FLSA, 

including, without limitation, 29 U.S.C. §216.

24. Defendant Joel Allred is deemed an “employer” for purposes of the FLSA, 

including, without limitation, 29 U.S.C. §216.

25. All Defendants are co-equally liable for all matters.

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26. Defendant Frank Cunningham made all decisions on the daily activities of his

employees and is therefore individually liable under the FLSA.

27. Defendant Frank Cunningham makes all decisions regarding pay policies for 

World Wide Stone Corporation, Inc.

28. Defendant John Heck made all decisions on the daily activities of his 

employees.

29. Defendant John Heck makes all decisions regarding pay policies for World 

Wide Stone Corporation, Inc. 

30. Defendant Joel Allred made all decisions on the daily activities of his 

employees.

31. Defendant Joel Allred makes all decisions regarding pay policies for World 

Wide Stone Corporation, Inc. 

32. Defendant Frank Cunningham exerted financial control over World Wide 

Stone Corporation, Inc.

33. Defendant Frank Cunningham exerted operative control over World Wide 

Stone Corporation, Inc. 

34. Defendant John Heck exerted financial control over World Wide Stone 

Corporation, Inc. 

35. Defendant John Heck exerted operative control over World Wide Stone 

Corporation, Inc. 

36. Defendant Joel Allred exerted operative control over World Wide Stone 

Corporation, Inc. 

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37. Defendant Joel Allred exerted financial control over World Wide Stone 

Corporation, Inc. 

38. Defendant Frank Cunningham has the power to close World Wide Stone

Corporation, Inc.

39. Defendant John Heck has the power to close World Wide Stone Corporation, 

Inc. 

40. Defendant Joel Allred has the power to close World Wide Stone Corporation, 

Inc. 

41. Defendant Frank Cunningham has the power to hire and fire employees. 

42. Defendant John Heck has the power to hire and fire employees. 

43. Defendant Joel Allred has the power to hire and fire employees. 

44. Defendant Frank Cunningham hired managerial employees. 

45. Defendant John Heck hired managerial employees. 

46. Defendant Joel Allred hired managerial employees. 

47. On information and belief, Defendant Frank Cunningham maintained 

employment records. 

48. On information and belief, Defendant John Heck maintained employment 

records. 

49. On information and belief, Defendant Joel Allred maintained employment 

records. 

50. On information and belief, Defendant Frank Cunningham dictated the 

corporate message in pending labor investigations. 

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51. On information and belief, Defendant John Heck dictated the corporate 

message in pending labor investigations. 

52. On information and belief, Defendant Joel Allred dictated the corporate 

message in pending labor investigations. 

53. Defendant Frank Cunningham profited from the FLSA violations detailed in 

this complaint. 

54. Defendant John Heck profited from the FLSA violations detailed in this 

complaint. 

55. Defendant Joel Allred profited from the FLSA violations detailed in this 

complaint. 

56. At all times material to this action, each of the Defendants was and continues

to be an “enterprise engaged in commerce or in the production of goods for commerce” 

as defined by 29 U.S.C. § 203(s)(1).

57. As a regional account representative, Plaintiff traveled outside the state of 

Arizona to meet with clientele and attend trade shows. 

58. As a regional account representative, Plaintiff sold products to out of state 

customers. 

59. Plaintiff engaged in commerce or in the production of goods for commerce 

and is therefore individually covered under the FLSA pursuant to 29 U.S.C. §§206(a), 

207(a)(1), 212(c).

60. Plaintiff was involved in transacting business across state lines via interstate 

telephone calls or the U. S. Mail which included taking new orders from customers.

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61. Plaintiff was involved in ordering or receiving goods from out-of-state 

suppliers.

62. Plaintiff was involved in handling the accounting or bookkeeping for the 

ordering or receiving of goods from out-of-state suppliers.

63. Plaintiff also handled credit card and check transactions that involved the 

interstate banking and finance systems.

64. On information and belief, at all relevant times, the annual gross revenue of 

Defendants exceeded, and continues to exceed, $500,000.00.

FACTUAL BACKGROUND

65. World Wide Stone Corporation, Inc. is a producer of natural, dimensional, 

marble limestone and travertine products. 

66. World Wide Stone Corporation, Inc. owns and operates rock quarries and 

factories that produce the stone to be sold to their clientele. 

67. World Wide Stone Corporation, Inc. hired Plaintiff on October 28, 2013 as a 

regional account representative.

68. Plaintiff’s job duties and responsibilities included being the point of contact 

for Defendants’ California, Oregon, Washington, Alaska, and British Columbia clientele. 

69. Plaintiff was also tasked with growing the client base over months past via

fostering and developing new client relations.

70. Plaintiff took orders and assisted clients in determine the best kind of stone 

for their construction needs. 

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71. World Wide Stone Corporation, Inc. compensated Plaintiff at an hourly rate 

of $19.23 per hour. 

72. Defendants withheld taxes out of Plaintiff’s paycheck pursuant to IRS 

regulations. 

73. Plaintiff’s regular schedule was five days per week.

74. Defendants told Plaintiff that his main task was to grow company sales from 

the prior term. 

75. Plaintiff informed Defendants that in order to do so he would have to work 

more than 40 hours each week. 

76. Defendants gave Plaintiff a key to the office and instructed him that he was 

allowed to work as many hours as he needed to complete the tasks but was not allowed to 

claim any hours over forty in a week. 

77. Therefore, Plaintiff would only be paid for forty hours each work week.

78. Plaintiff would have to arrive at 8:00 am every day he was on the schedule, 

but Plaintiff arrived at 7:45 every day, and was not able to leave work until at least 8:00 

p.m. each day that he was on the schedule. 

79. Plaintiff worked these long hours at Defendants’ office in Phoenix, Arizona, 

Defendant Cunningham, Robert Livingston, and David Gerth personally witnessed 

Plaintiff work such hours as they were usually in the office late into the night as well. 

80. Each and every week that Plaintiff has worked his regular schedule, he has 

worked over forty hours in a week. 

81. Plaintiff was a non-exempt employee. 

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82. Plaintiff had no supervision or management responsibilities. 

83. Plaintiff could neither hire nor fire employees.

84. Plaintiff had no authority to exercise significant independent judgment on 

issues that affect the whole company when carrying out his job responsibilities.

85. Defendants managed, supervised, and directed all aspects of Plaintiff’s job 

duties and responsibilities.

86. Plaintiff’s primary duty was not the performance of work directly related to 

the management or general business operations of World Wide Stone Corporation, Inc. or 

its’ customers. 

87. Plaintiff’s primary duty was not the performance of work requiring advanced 

knowledge in a field of science or learning that was acquired by a prolonged course of 

specialized intellectual instruction. 

88. Plaintiff did not perform work requiring advanced knowledge. 

89. Plaintiff did not perform work in a field of science or learning. 

90. Plaintiff did not have an advanced degree and was not required to have one to 

perform the work.

91. The knowledge required to perform the work of regional account 

representative is not acquired by a prolonged course of specialized intellectual study.

92. Plaintiff’s work did not require consistent exercise of discretion and 

judgment. 

93. Plaintiff’s work did not require him to analyze, interpret, or make deductions 

from varying facts or circumstances.

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94. Plaintiff’s duties were carried out in a mechanical and routine manner and he

had no authority to make independent decisions in performing those duties. 

95. Plaintiff’s work did not require invention, imagination, originality, or talent.

96. Plaintiff’s work did not require creative or original analysis and 

interpretation. 

97. By improperly dictating to Plaintiff that he would not be paid for any 

overtime hours, Defendants are depriving Plaintiff upwards of twenty or more hours of 

overtime pay each and every week. 

98. Defendants did not pay Plaintiff overtime. 

99. Commissions did not consist of more than half of Plaintiff’s weekly earnings. 

100. Plaintiff has retained the law firm of Phillips Dayes National Employment 

Law Firm to prosecute his claims against Defendants on his behalf and has agreed to pay 

reasonable costs and attorney’s fees in the prosecution of this matter.

COUNT ONE

OVERTIME VIOLATION—29 U.S.C. § 207

101. Plaintiff incorporates and adopts paragraphs 1 through 100 above as if fully 

set forth herein.

102. While employed by Defendants, Plaintiff regularly worked multiple hours of 

overtime per week.

103. Plaintiff was a non-exempt employee.

104. Defendants have intentionally and willfully failed and refused to pay Plaintiff 

overtime according to the provisions of the FLSA.

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105. On information and belief, Defendants further engaged in a widespread 

pattern and practice of violating the provisions of the FLSA by failing to pay Plaintiff in 

accordance with 29 U.S.C. § 207.

106. As the direct and proximate result of Defendants’ violations of the FLSA, 

Plaintiff has suffered damages by failing to receive compensation in accordance with 29 

U.S.C. § 207.

107. Pursuant to 29 U.S.C. § 216, Defendants are liable to Plaintiff for an amount 

equal to one and one-half times his regular pay rate for each hour of overtime worked per 

week.

108. In addition to the amount of unpaid wages owed to Plaintiff, he is also 

entitled to recover an additional equal amount as liquidated damages pursuant to 29 

U.S.C. § 216(b).

109. On information and belief, Defendants’ conduct in failing to properly 

compensate Plaintiff, in violation of the FLSA, was willful.

110. Defendants have not made a good faith effort to comply with the FLSA.

Plaintiff has been required to bring this action to recover his overtime compensation, and 

his statutory liquidated damages, and as the direct and foreseeable result of Defendants’

conduct, Plaintiff has incurred costs and attorneys’ fees.

WHEREFORE, Plaintiff respectfully requests that judgment be entered in his

favor against Defendants:

a. Awarding Plaintiff overtime compensation in the amount due for all of 

his time worked in excess of forty (40) hours per week at a pay rate 

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equal to one and one-half times Plaintiff’s regular rate of pay while at 

work for Defendants, in an amount proved at trial;

b. Awarding Plaintiff liquidated damages in an amount equal to the 

overtime award;

c. Awarding Plaintiff reasonable attorneys’ fees, costs, and expenses of the 

litigation pursuant to 29 U.S.C. § 216(b);

d. Awarding Plaintiff pre-judgment interest, at the highest legal rate, on all 

amounts awarded under subsections (a) and (b) above from the date of 

the payment due for that pay period until paid in full;

e. Awarding Plaintiff post-judgment interest, at the highest legal rate, on 

all awards from the date of such award until paid in full; and

f. For such other and further relief as the Court deems just and proper.

COUNT TWO

DECLARATORY JUDGMENT

111. Plaintiff incorporates and adopts paragraphs 1 through 110 above as if fully 

set forth herein.

112. Plaintiff and Defendants have an overtime compensation dispute pending.

113. The Court has jurisdiction to hear Plaintiff’s request for declaratory relief 

pursuant to the Declaratory Judgment Act, 28 U.S.C. §§ 2201–02.

114. Plaintiff is entitled to declarations, and requests that the Court make 

declarations as to the following matters and as to other matters deemed appropriate by the 

Court:

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a. Defendants employed Plaintiff.

b. Defendants are engaged in an enterprise covered by the overtime provisions 

of the FLSA.

c. Plaintiff individually is covered by the overtime provisions of the FLSA.

d. Plaintiff was not an exempt employee pursuant to the FLSA.

e. Defendants failed and refused to make payments of overtime compensation 

to Plaintiff, in violation of the provisions of the FLSA.

f. Defendants’ failures to pay overtime compensation to Plaintiff were willful.

g. Plaintiff is entitled to damages in the amount of overtime compensation not 

paid by Defendants at the rate of one and one-half times Plaintiff’s regular 

rate of pay.

h. Plaintiff is entitled to an equal amount as liquidated damages.

i. Plaintiff is entitled to recover his costs and a reasonable attorney’s fee 

incurred in prosecuting his claim.

115. It is in the public interest to have these declarations of rights recorded as 

Plaintiff’s declaratory judgment action serves the useful purposes of clarifying and 

settling the legal relations at issue, preventing future harm, and promoting the remedial 

purposes of the FLSA.

116. The declaratory judgment action further terminates and affords relief from 

uncertainty, insecurity, and controversy giving rise to the proceeding.

WHEREFORE, Plaintiff respectfully requests that judgment be entered in his

favor against Defendants:

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a. Declaring, pursuant to the Declaratory Judgment Act, 28 U.S.C. §§ 

2201–02, that the acts and practices complained of herein are in 

violation of the overtime and wage provisions of the FLSA;

b. Awarding Plaintiff his reasonable attorney’s fees and the costs and 

expenses of the litigation pursuant to the FLSA; and

c. For such other and further relief as the Court deems just and proper

Dated: November 10, 2015

Respectfully submitted,

PHILLIPS DAYES NATIONAL EMPLOYMENT LAW 

FIRM PC

By: /s/ Trey Dayes

Trey Dayes

Attorney for Plaintiff

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