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WO 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Joanne Zuniga and David M. Reaves,

Plaintiffs, 

v. 

Fiesta Pediatric Therapy Incorporated, Beth 

Williamson, and Randy Williamson, 

Defendants. 

No. CV-15-1978-PHX-DKD

ORDER 

 Counterdefendant/Plaintiff (“Zuniga”) has moved to dismiss the three 

counterclaims brought by Counterclaimants/Defendants (“Fiesta”). (Docs. 56, 58) The 

counterclaims are: 1) violating the Computer Fraud and Abuse Act (“CFAA”), 2) breach 

of the duty of loyalty, and 3) misappropriation. (Doc. 56 at 13-14) The parties have 

consented to Magistrate Judge jurisdiction pursuant to 28 U.S.C. § 636(c). (Doc. 8) 

 The parties do not dispute that all of the claims in the Amended Complaint and the 

Amended Counterclaim stem from Zuniga’s employment by Fiesta and her actions 

involving Fiesta’s information after she separated from employment. (Docs. 14, 56) The 

dispute is whether this is sufficient to establish the Court’s jurisdiction over the 

counterclaims.1

 On its face, the employment relationship between Zuniga and Fiesta 

provides a sufficiently common nucleus of operative fact to support the Court’s 

jurisdiction over the counterclaims. Notably, neither of the parties has explained why or 

 

1

 Both sides cite and distinguish cases that analyze jurisdiction but none of them are binding precedent. (Docs. 58, 61, 63) The only precedential cases cited by either party involved facts that are so divergent to this case as to be practically irrelevant. 

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how they will be prejudiced by proceeding with all claims together. Zuniga advances 

possible Congressional interests; such as those cited in Gagnon v. United Technisource, 

Inc., 607 F.3d 1036, 104 (5th Cir. 2010), and Brennan v. Heard, 491 F.2d 1, 4 (5th

Cir.1974), rev'd on other grounds, McLaughlin v. Richland Shoe Co., 486 U.S. 128, 108 

S.Ct. 1677, 100 L.Ed.2d 115 (1988). To be sure the Fifth Circuit has such a body of case 

law that disfavors the “clutter[ing]” of FLSA cases “with the minutiae of other employeremployee relationships [that] would be antithetical to the purpose of the Act”, Brennan at 

p. 4., but the Ninth Circuit does not. 

 Zuniga refers in passing to additional discovery from the Counterclaims but does 

not provide any additional explanation to support this argument. (Doc. 58 at 3) Instead, 

it appears that these claims involve the same witnesses and the same, or similar, 

documents. Zuniga further argues for dismissal because the claims in the Complaint will 

be decided in a jury trial and the Counterclaim will be decided in a bench trial. (Doc. 58 

at 3, Doc. 63 at 5) Wise case and trial management can forestall any problems of this 

nature. Accordingly, jurisdiction over the Amended Counterclaim is appropriate as a 

prudent exercise of the Court’s original jurisdiction over the CFAA claim and a prudent 

exercise of its discretionary supplemental jurisdiction over the other two, state law 

counterclaims. 

 Zuniga also attempts to argue the merits of the CFAA claim. (Doc. 58 at 8-10) 

This attempt—unsupported by anything beyond counsel’s allegations—is unavailing. 

Zuniga also raises arguments and seeks alternative forms of relief for the first time in the 

reply which the Court will not entertain. Eberle v. City of Anaheim, 901 F.2d 814, 818 

(9th Cir. 1990) (the Court will not consider a new issue raised for the first time in a reply 

brief). (Because the Court will not consider these extraneous issues it will deny 

Defendants’ Motion to Strike (Doc. 64) as moot.) 

 Finally, the Court notes one of the only areas where the parties agree is that the 

lawyers’ fees in this matter outweigh Zuniga’s damages claim by a ratio of approximately 

10-to-1. (Doc. 63 at 17) The parties are reminded of the availability of the Court’s 

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settlement conference process and further reminded that the Arizona State Bar expects 

lawyers to act honorably not zealously. Ariz. St. Supreme Ct. R. 42 Preamble at [9]. See

also Safeway Ins. Co., Inc. v. Guerrero, 83 P.3d 560, 572, n. 10 (Ariz. App. 2004),

overturned on other irrelevant grounds. 

 In order to facilitate a professional, courteous, and civil tenor for the remainder of 

this case, the Court is inclined to make itself available to telephonically attend all future 

depositions. Accordingly, the Court must be timely informed of all depositions and any 

change to the docketed Notices of Deposition; the docket currently shows a deposition 

scheduled for September 22, 2016, at 9:00 am at the Jaburg &Wilk offices. (Doc. 59) 

The Court will make every effort to keep its calendar flexible during the times noticed for 

depositions so that it can be available if necessary. Also, given the tenor of some of 

counsels’ correspondence, the Court gives this notice that it may in the future require that 

it be copied on all non-Rule 408 written and email correspondence between counsel 

related to this case. 

IT IS THEREFORE ORDERED denying Counterdefendants’ Motion to 

Dismiss All Counterclaims. (Doc. 58) 

IT IS FURTHER ORDERED that counsel keep the Court informed of the 

current deposition schedule. 

 IT IS FURTHER ORDERED denying Counterdefendants’ Motion to Strike as 

Moot. (Doc 64) 

 Dated this 16th day of September, 2016. 

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