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Ryan Thompson (#28493)

WATTS GUERRA LLP

Four Dominion Drive

Building Three, Suite 100

San Antonio, Texas 78257

Telephone: (210) 447-0500

Facsimile: (210) 447-0501

rthompson@wattsguerra.com

Attorneys for Plaintiffs

Additional Counsel on Signature Page

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

PRESCOTT DIVISION

Michael Larson, individually and )

on behalf of similarly situated persons, ) Case No. 

)

Plaintiff, )

) COMPLAINT

v. )

)

Desert Sun Pizza, LLC, NSFM Pizza, )

Inc. and NSFM Pizza Utah, LLC, ) JURY TRIAL DEMANDED

)

Defendants. )

Plaintiff Michael Larson, individually and on behalf of all other similarly 

situated delivery drivers, for his Complaint against Defendants, alleges as 

follows:

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1. Defendants Desert Sun Pizza LLC, NSFM Pizza, INC and NSFM Pizza 

Utah, LLC are commonly owned and operated entities which together operate 

a total of approximately 28 Domino’s franchise stores in Arizona, Utah, 

Wyoming, Nevada and California during times relevant. 

2. Defendants fail to pay the Arizona minimum wage to their delivery 

drivers, even before considering unreimbursed vehicle expenses incurred by 

Defendants’ delivery drivers.

3. Defendants employ delivery drivers who use their own automobiles to 

deliver pizzas and other food items to their customers. Instead of reimbursing 

delivery drivers for the reasonably approximate costs of the business use of 

their vehicles, Defendants use a flawed method to determine reimbursement 

rates that provides such an unreasonably low rate beneath any reasonable 

approximation of the expenses they incur that the drivers’ unreimbursed 

expenses cause their wages to fall below the federal and Arizona minimum 

wages during some or all workweeks.

4. Additionally, Defendants require their delivery drivers to arrive at or 

before their scheduled start times but prohibit them from clocking in, and thus 

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receiving pay, until there is an order ready for delivery. This further causes 

drivers’ wages to fall below the federal and Arizona minimum wage. 

5. Plaintiff Michael Larson brings this lawsuit as a collective action under 

the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., and as a class 

action under the Arizona Employment Practices and Working Conditions law 

(“AEPWCL”), A.R.S. § 23-201 et seq., to recover unpaid minimum wages owed 

to himself and all similarly situated delivery drivers employed by Defendants 

at their Domino’s stores.

Jurisdiction and Venue

6. The FLSA authorizes court actions by private parties to recover 

damages for violation of wage and hour provisions. Jurisdiction over 

Plaintiff’s FLSA claim is based on 29 U.S.C. § 216(b) and 28 U.S.C. § 1331 

(federal question).

7. The AEPWCL authorizes court actions by private parties to recover 

damages for violation of their wage and hour provision. Jurisdiction over 

Plaintiff’s AEPWCL claims is based on A.R.S. § 23-364(H) and 28 U.S.C. § 1367 

(pendent claims).

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8. Venue in this District is proper under 28 U.S.C. § 1391 because 

Defendants operate Domino’s franchise stores in this District, Defendants 

employ Plaintiff in this District, and a substantial part of the events giving rise 

to the claim herein occurred in this District.

Parties

9. Defendants Desert Sun Pizza LLC, NSFM Pizza, INC. and NSFM Pizza 

Utah, LLC are related Utah limited liability companies which, during times 

relevant, operated Domino’s franchise stores within the District of Arizona. 

10. Defendants are jointly and severally liable for the conduct alleged 

herein as Defendants constitute joint employers because they share the power 

to hire and fire employees, the power to supervise and control employee work 

schedules or conditions of employment, authority to determine the rates and 

methods of payment, and maintenance of employment records.

11. Alternatively, Defendants are jointly and severally liable for the 

conduct alleged herein as Defendants form a single integrated enterprise 

because they share common ownership, common management, centralized 

control of labor relations and interrelation of operations. 

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12. Plaintiff Michael Larson has been employed by Defendants since 

approximately May 2012 as a delivery driver at their Domino’s store in 

Bullhead City, Arizona, which is located within the Prescott Division of the 

District of Arizona. Plaintiff Larson’s Consent to Become a Party Plaintiff 

under 29 U.S.C. § 216(b) is attached hereto as “Exhibit 1.” 

General Allegations

Defendants’ Business

13. During the recovery period, Defendants have owned and operated 

approximately 28 Domino’s franchise stores in Arizona, Utah, Wyoming, 

Nevada and California.

14. Each of Defendants’ stores employs delivery drivers (hereinafter 

collectively “Delivery Drivers.”). 

15. Defendants’ Delivery Drivers have the same primary job duty of 

delivering pizzas and other food items to Defendants’ customers using their 

personal automobiles. 

Defendants’ Pay Practices

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16. As of January 1, 2015, Arizona’s minimum wage increased from $7.90 

per hour to $8.05 per hour and Arizona’s tipped minimum wage increased 

from $4.90 per hour to $5.05 per hour.

17. Despite the January 1, 2015 minimum wage increases, Defendants do 

not pay hourly wages to their Arizona Delivery Drivers for non-tipped duties 

of at least $8.05 per hour and Defendants do not pay wages to their Arizona 

Delivery Drivers for tipped duties of at least $5.05 per hour. On or about 

January 1, 2015, Defendants increased Arizona Delivery Drivers’ minimum 

wages to the new statutory minimums, but they lowered their wages back to 

the pre-2015 rates on or about the very next day.

Defendants’ Flawed Reimbursement Policy

18. Defendants require their Delivery Drivers to maintain and pay for safe, 

legally-operable, and insured automobiles when delivering pizza and other 

food items.

19. Defendants’ Delivery Drivers incur costs for gasoline, vehicle parts and 

fluids, repair and maintenance services, insurance, depreciation, and other 

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expenses (“automobile expenses”) while delivering pizzas for the primary 

benefit of Defendants.

20. Defendants’ Delivery Driver reimbursement policy reimburses Delivery 

Drivers on a per-delivery basis that results in a per-mile reimbursement far 

below the IRS business mileage reimbursement rate or any other reasonable 

approximation of the cost to own and operate a motor vehicle. This policy 

applies to all of Defendants’ Delivery Drivers. 

21. The result of Defendants’ Delivery Driver reimbursement policy is a 

reimbursement of much less than a reasonable approximation of their Delivery 

Drivers’ automobile expenses.

22. During the applicable FLSA limitations period, the IRS business 

mileage reimbursement rate has ranged between $.54 and $.575 per mile. 

These figures represent a reasonable approximation of the average cost of 

owning and operating a vehicle for use in delivering pizzas.

23. The driving conditions associated with the pizza delivery business 

cause more frequent maintenance costs, higher costs due to repairs associated 

with driving, and more rapid depreciation from driving as much as, and in the 

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manner of, a delivery driver. Defendants’ Delivery Drivers further experience 

lower gas mileage and higher repair costs than the average driver used to 

determine the average cost of owning and operating a vehicle described above 

due to the nature of the delivery business, including frequent starting and 

stopping of the engine, frequent braking, short routes as opposed to highway 

driving, and driving under time pressures.

24. Defendants’ reimbursement policy does not reimburse the Delivery 

Drivers for even their ongoing out-of-pocket expenses, much less other costs 

they incur to own and operate their vehicle, and thus Defendants uniformly 

fail to reimburse their Delivery Drivers at any reasonable approximation of the 

cost of owning and operating their vehicles for Defendants’ benefit.

25. Defendants’ systematic failure to adequately reimburse automobile 

expenses constitutes a “kickback” to Defendants such that the hourly wages 

they pay to Plaintiff and Defendants’ other Delivery Drivers are not paid free 

and clear of all outstanding obligations to Defendants.

26. Defendants fail to reasonably approximate the amount of their Delivery 

Drivers’ automobile expenses to such an extent that their Delivery Drivers’ net 

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wages are diminished beneath the federal minimum wage and diminished 

even further below Arizona’s minimum wage.

27. In sum, Defendants’ reimbursement policy and methodology fail to 

reflect the realities of Delivery Drivers’ automobile expenses.

Defendants’ Failure to Reasonably Reimburse Automobile Expenses Causes 

Minimum Wage Violations

28. Regardless of the precise amount of the per-delivery reimbursement at 

any given point in time, Defendants’ reimbursement formula has resulted in 

an unreasonable underestimation of Delivery Drivers’ automobile expenses 

throughout the recovery period, causing systematic violations of the federal 

and Arizona minimum wages.

29. Plaintiff Larson is paid $7.90 per hour in store and $5.00 on the road by 

Defendants, and both rates are less than the applicable Arizona minimum 

wages. 

30. The federal minimum wage has been $7.25 per hour since July 24, 2009. 

29 U.S.C. § 206(a). 

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31. Arizona’s full minimum wage was $7.80 in 2013, was $7.90 in 2014, and 

has been $8.05 since 2015. http://www.govdocs.com/arizona-2015-minimumwage-increase.

32. Arizona’s tipped minimum wage was $4.80 in 2013, was $4.90 in 2014, 

and has been $5.05 since 2015. Id.; A.R.S. § 23-363(C).

33. Plaintiff Larson has driven a 2000 Dodge Caravan and a 1994 Ford 

Explorer while delivering pizzas for Defendants. 

34. During Plaintiff Larson’s employment by Defendants, the per-delivery 

reimbursement rate at the store where he has worked has been approximately 

$1.40 for the first delivery in a trip, $1.00 for the second delivery in a trip, and 

$0.60 for the third delivery in a trip; which equates to an overall 

reimbursement rate of approximately $1.20 per delivery.

35. During his employment with Defendants, Plaintiff Larson has 

experienced an average delivery distance of at least 6.5 miles per delivery. 

36. Thus, during the applicable limitations period, Defendants’ average 

effective reimbursement rate for Plaintiff Larson has been approximately $.185 

per mile ($1.20 per delivery / 6.5 average miles per delivery).

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37. During most of this same time period, the IRS business mileage 

reimbursement rate was $.575 per mile, which reasonably approximates the 

automobile expenses incurred delivering pizzas. Using the IRS rate as a 

reasonable approximation of Plaintiff Larson’s automobile expenses, every 

mile driven on the job decreased his net wages by approximately $.39 ($.575 -

$.185) per mile. Considering Plaintiff Larson’s estimate of at least 6.5 miles per 

delivery, Defendants have under-reimbursed him about $2.535 per delivery 

($.39 x 6.5 miles).

38. During his employment by Defendants as a Delivery Driver, Plaintiff 

Larson has typically averaged approximately 2.2 deliveries per hour.

39. Thus, Plaintiff Larson has consistently “kicked back” to Defendants 

$5.577 ($2.535 per delivery x 2.2 deliveries per hour), for an effective hourly 

wage rate of about $2.323 ($7.90 per hour - $5.577 kickback). 

40. All of Defendants’ Delivery Drivers had similar experiences to those of 

Plaintiff Larson. They were subject to the same reimbursement policy; received 

similar reimbursements; incurred similar automobile expenses; completed 

deliveries of similar distances and at similar frequencies; and were paid near 

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the federal and Arizona minimum wage before deducting unreimbursed 

business expenses.

41. Because Defendants paid their Delivery Drivers a gross hourly wage 

very close to the applicable federal or state minimum wage, and because the 

Delivery Drivers incurred unreimbursed automobile expenses, the Delivery 

Drivers “kicked back” to Defendants an amount sufficient to cause minimum 

wage violations.

42. While the amount of Defendants’ actual reimbursements per mile may 

vary over time, Defendants are relying on the same flawed policy and 

methodology with respect to all Delivery Drivers at all of their other Domino’s 

stores. Thus, although reimbursement amounts may differ somewhat by time 

or region, the amounts of under-reimbursements relative to automobile costs 

incurred are relatively consistent between time and region.

Defendants’ Clock-Punch Policy

43. Defendants also require their Delivery Drivers to arrive at or before 

their scheduled start times but prohibit them from clocking in, and thus 

receiving pay, until an order is ready for delivery. 

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44. The difference between the Delivery Drivers’ scheduled time and clockin time can be easily tracked by comparing Defendant’s clock punch records to 

its work schedules.

Overall Result

45. The net effect of these policies is that Defendants willfully fail to pay 

the federal and Arizona minimum wage to their Delivery Drivers. Defendants 

thereby enjoy ill-gained profits at the expense of their employees.

Class and Collective Action Allegations

46. Plaintiff brings Count I as a class action pursuant to Fed. R. Civ. P. 23, 

on behalf of himself and as the Class Representative of the following persons 

(the “Class”):

All current and former Delivery Drivers employed by 

Defendants in the State of Arizona since January 1, 2015. 

47. Count I, if certified for class-wide treatment, is brought on behalf of all 

similarly situated persons who do not opt-out of the Class.

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48. Plaintiff’s state law claim asserted in Count I satisfies the numerosity, 

commonality, typicality, adequacy, predominance and superiority 

requirements of a class action pursuant to Fed. R. Civ. P. 23.

49. The Class sought in Count I satisfies the numerosity standard as it 

consists of at least hundreds of persons who are geographically dispersed and, 

therefore, joinder of all Class members in a single action is impracticable.

50. Questions of fact and law common to the Class sought in Count I 

predominate over any questions affecting only individual members. The 

questions of law and fact common to the Class arising from Defendants’ 

actions include, without limitation, whether Defendants failed to pay Class 

members the minimum wage required by Arizona law. 

51. The questions set forth above predominate over any questions affecting 

only individual persons, and a class action is superior with respect to 

considerations of consistency, economy, efficiency, fairness, and equity to 

other available methods for the fair and efficient adjudication of the state law 

claims.

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52. Plaintiff’s claim is typical of those of the Class sought in Count I in that 

Plaintiff and the Class have worked as Delivery Drivers in Arizona, they are all 

non-exempt from the AEPWCL, and they have all been paid less than the 

applicable Arizona minimum wage rate. 

53. Plaintiff is an adequate representative of the Class sought in Count I 

because he is a member of that Class and his interest does not conflict with the 

interest of the members of the Class he seeks to represent. The interests of the 

members of the Class sought in Count I will be fairly and adequately protected 

by Plaintiff and the undersigned counsel, who have extensive experience 

prosecuting complex wage and hour, employment, and class action litigation.

54. Maintenance of the claim asserted in Count I as a class action is 

superior to other available methods for fairly and efficiently adjudicating the 

controversy as members of the Class have little interest in individually 

controlling the prosecution of separate class actions, no other litigation is 

pending over the same controversy, it is desirable to concentrate the litigation 

in this Court due to the relatively small recoveries per member of the Class, 

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and there are no material difficulties impairing the management of a class 

action. 

55. It would be impracticable and undesirable for each member of the Class 

sought in Count I who suffered harm to bring a separate action. In addition, 

the maintenance of separate actions would place a substantial and unnecessary 

burden on the courts and could result in inconsistent adjudications, while a 

single class action can determine, with judicial economy, the rights of all Class 

members.

56. Plaintiff brings Counts II and III as “opt-in” collective action claims on 

behalf of similarly situated Delivery Drivers pursuant to Section 16(b) of the 

FLSA, 29 U.S.C. § 216(b).

57. The FLSA claims may be pursued by those who opt-in to this case 

pursuant to 29 U.S.C. § 216(b).

58. Plaintiff, individually and on behalf of other similarly situated 

employees, seeks relief on a collective basis challenging Defendants’ practice 

of failing to pay employees federal minimum wage. The number and identity 

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of other plaintiffs yet to opt-in may be ascertained from Defendants’ records, 

and potential plaintiffs may be notified of the pendency of this action via mail.

59. Plaintiff and all of Defendants’ Delivery Drivers are similarly situated 

in that:

a. They have worked as Delivery Drivers for Defendants 

delivering pizza and other food items to Defendants’ customers;

b. They have delivered pizza and food items using automobiles 

not owned or maintained by Defendants;

c. Defendants required them to maintain these automobiles in a 

safe, legally-operable, and insured condition; 

d. They incurred costs for automobile expenses while delivering 

pizzas and food items for the primary benefit of Defendants;

e. They were subject to similar driving conditions, automobile 

expenses, delivery distances, and delivery frequencies;

f. They were subject to the same pay policies and practices of 

Defendants; 

g. They were subject to the same Delivery Driver reimbursement 

policy that underestimates automobile expenses per mile, and 

thereby systematically deprived of reasonably approximate 

reimbursements, resulting in wages below the federal minimum 

wage in some or all workweeks;

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h. They were reimbursed similar set amounts of automobile 

expenses per mile;

i. They were paid near the federal and state minimum wage 

before deducting unreimbursed business expenses; and

j. They were required by Defendants to arrive at or before a 

scheduled time but prohibited from clocking in until orders 

were ready for delivery. 

60. Plaintiff brings Count IV and V as a class action pursuant to Fed. R. Civ. 

P. 23, on behalf of himself and as the Class Representative of the following 

persons (the “Class”):

All current and former Delivery Drivers employed by 

Defendants in the State of Arizona since the date 3 years 

preceding the filing of this Complaint. 

61. Counts IV and V, if certified for class-wide treatment, are brought on 

behalf of all similarly situated persons who do not opt-out of the Class.

62. Plaintiff’s state law claims asserted in Counts IV and V satisfy the 

numerosity, commonality, typicality, adequacy, predominance and superiority 

requirements of a class action pursuant to Fed. R. Civ. P. 23.

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63. The Class sought in Counts IV and V satisfies the numerosity standard 

as it consists of at least hundreds of persons who are geographically dispersed 

and, therefore, joinder of all Class members in a single action is impracticable.

64. Questions of fact and law common to the Class sought in Counts IV and 

V predominate over any questions affecting only individual members. The 

questions of law and fact common to the Class arising from Defendants’ 

actions include, without limitation:

a. Whether they have worked as Delivery Drivers for Defendants 

delivering pizza and other food items to Defendants’ customers;

b. Whether they have delivered pizza and food items using 

automobiles not owned or maintained by Defendants;

c. Whether Defendants required them to maintain these 

automobiles in a safe, legally-operable, and insured condition; 

d. Whether they incurred costs for automobile expenses while 

delivering pizzas and food items for the primary benefit of 

Defendants;

e. Whether they were subject to similar driving conditions, 

automobile expenses, delivery distances, and delivery 

frequencies;

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f. Whether they were subject to the same pay policies and 

practices of Defendants; 

g. Whether they were subject to the same Delivery Driver 

reimbursement policy that underestimates automobile expenses 

per mile, and thereby systematically deprived of reasonably 

approximate reimbursements, resulting in wages below the 

federal minimum wage in some or all workweeks;

h. Whether they were reimbursed similar set amounts of 

automobile expenses per mile;

i. Whether they were paid near the federal and state minimum 

wage before deducting unreimbursed business expenses; and

j. Whether they were required by Defendants to arrive at or before 

a scheduled time but prohibited from clocking in until orders 

were ready for delivery. 

65. The questions set forth above predominate over any questions affecting 

only individual persons, and a class action is superior with respect to 

considerations of consistency, economy, efficiency, fairness, and equity to 

other available methods for the fair and efficient adjudication of the state law 

claims.

66. Plaintiff’s claim is typical of those of the Class sought in Counts IV and 

V in that:

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a. Plaintiff and the Class have worked as delivery drivers for 

Defendants delivering pizza and other food items to 

Defendants’ customers;

b. Plaintiff and the Class delivered pizza and food items using 

automobiles not owned or maintained by Defendants;

c. Defendants required Plaintiff and the Class to maintain these 

automobiles in a safe, legally-operable, and insured condition; 

d. Plaintiff and the Class incurred costs for automobile expenses 

while delivering pizzas and other food items for the primary 

benefit of Defendants;

e. Plaintiff and the Class were subject to similar driving 

conditions, automobile expenses, delivery distances, and 

delivery frequencies;

f. Plaintiff and the Class were subject to the same pay policies and 

practices of Defendants; 

g. Plaintiff and the Class were subject to the same delivery driver 

reimbursement policy that underestimates automobile expenses 

per mile, and thereby systematically deprived of reasonably 

approximate reimbursements, resulting in wages below the 

federal minimum wage in some or all workweeks;

h. Plaintiff and the Class were reimbursed similar set amounts of 

automobile expenses per mile;

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i. Plaintiff and the Class were paid at similar wage rates before 

deducting unreimbursed vehicle expenses; and

j. Plaintiff and the Class were required by Defendants to arrive at 

or before a scheduled time but prohibited from clocking in until 

orders were ready for delivery. 

67. Plaintiff is an adequate representative of the Class sought in Counts IV 

and V because he is a member of that Class and his interest does not conflict 

with the interest of the members of the Class he seeks to represent. The 

interests of the members of the Class sought in Counts IV and V will be fairly 

and adequately protected by Plaintiff and the undersigned counsel, who have 

extensive experience prosecuting complex wage and hour, employment, and 

class action litigation.

68. Maintenance of the claim asserted in Counts IV and V as a class action 

is superior to other available methods for fairly and efficiently adjudicating the 

controversy as members of the Class have little interest in individually 

controlling the prosecution of separate class actions, no other litigation is 

pending over the same controversy, it is desirable to concentrate the litigation 

in this Court due to the relatively small recoveries per member of the Class, 

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and there are no material difficulties impairing the management of a class 

action. 

69. It would be impracticable and undesirable for each member of the Class 

sought in Counts IV and V who suffered harm to bring a separate action. In 

addition, the maintenance of separate actions would place a substantial and 

unnecessary burden on the courts and could result in inconsistent 

adjudications, while a single class action can determine, with judicial economy, 

the rights of all Class members.

COUNT I: Violation of the AEPWCL by

Failing to Pay Arizona’s Minimum Wage

70. Plaintiff reasserts and re-alleges the allegations set forth above.

71. At all relevant times herein, Plaintiff and the Class have been entitled to 

the rights, protections, and benefits provided under the AEPWCL, A.R.S. § 23-

201 et seq. 

72. No exemption from the AEPWCL applies to Plaintiff or the Class. 

73. Arizona law regulates, among other things, the payment of minimum 

wage by employers who employ any person in Arizona. A.R.S. § 23-363. 

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74. During all times relevant to this action, Plaintiff and the Class were 

Defendants’ “employees” within the meaning of Arizona law. A.R.S. § 23-

362(A).

75. During all times relevant to this action, Defendants were the 

“employers” of Plaintiff and the Class within the meaning of Arizona law. 

A.R.S. § 23-362(B). 

76. Defendants, pursuant to their policy and practice, violated Arizona law 

by refusing and failing to pay Plaintiff and the Class wages equal to at least 

Arizona’s applicable minimum wages, even before considering unreimbursed 

job expenses.

77. Plaintiff and the Class are victims of a uniform and employer-based 

compensation policy. Upon information and belief, this uniform policy, in 

violation of Arizona law, has been applied, and continues to be applied, to all 

Class members in Defendants’ other Domino’s stores located in Arizona.

78. Because Defendants acted willfully and knew, or showed reckless 

disregard for, whether their conduct was unlawful, Plaintiff and all similarly 

situated employees are entitled to actual damages equal to the difference 

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between the minimum wage and actual wages received since January 1, 2015, 

plus a period of time encompassing all violations that occurred as part of a 

continuing course of employer conduct regardless of the date. A.R.S. § 23-

364(H).

79. Plaintiff and all similarly situated employees are entitled to additional 

damages equal to two times the difference between the minimum wage and 

actual wages received since January 1, 2015, plus a period of time 

encompassing all violations that occurred as part of a continuing course of 

employer conduct regardless of their date. A.R.S. §§ 23-364(G) & (H). 

80. Plaintiff and the Class are entitled to an award of pre-judgment and 

post-judgment interest at the applicable legal rate. Id. 

81. Defendants are also liable for Plaintiff’s costs and attorney’s fees 

incurred in this action. Id.

WHEREFORE, Plaintiff and the Class demand judgment against Defendants 

and pray for: (1) compensatory damages; (2) liquidated damages, (3) costs of 

litigation and attorney’s fees as provided by law; (4) pre-judgment and postCase 3:16-cv-08011-SRB Document 1 Filed 01/25/16 Page 25 of 40
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judgment interest as provided by law; and (5) such other relief as the Court 

deems fair and equitable.

COUNT II: Violation of the FLSA by Failing

to Reasonably Reimburse Vehicle Expenses

82. Plaintiff reasserts and re-alleges the allegations set forth above.

83. At all relevant times herein, Plaintiff and all other similarly situated 

Delivery Drivers have been entitled to the rights, protections, and benefits 

provided under the FLSA, 29 U.S.C. §§ 201, et seq.

84. Section 13 of the FLSA, 29 U.S.C. § 213, exempts certain categories of 

employees from federal minimum wage obligations, but none of the FLSA 

exemptions apply to Plaintiff or other similarly situated Delivery Drivers.

85. The FLSA regulates, among other things, the payment of minimum 

wage by employers whose employees are engaged in interstate commerce, or 

engaged in the production of goods for commerce, or employed in an 

enterprise engaged in commerce or in the production of goods for commerce. 

29 U.S.C. §206(a).

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86. Defendants are subject to the FLSA’s minimum wage requirements 

because they are an enterprise engaged in interstate commerce, and their 

employees are engaged in commerce.

87. Under Section 6(a) of the FLSA, 29 U.S.C. § 206(a), employees have been 

entitled to be compensated at a rate of at least $7.25 per hour since July 24, 

2009. Id.

88. As alleged herein, Defendants have reimbursed Delivery Drivers less 

than the reasonably approximate amount of their automobile expenses to such 

an extent that it diminishes these employees’ wages beneath the federal 

minimum wage. 

89. Defendants knew or should have known that their pay and 

reimbursement policies, practices and methodology result in failure to 

compensate Delivery Drivers at the federal minimum wage.

90. Defendants, pursuant to their policy and practice, violated the FLSA by 

refusing and failing to pay federal minimum wage to Plaintiff and other 

similarly situated employees.

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91. Plaintiff and all similarly situated Delivery Drivers are victims of a 

uniform and employer-based compensation and reimbursement policy. This 

uniform policy, in violation of the FLSA, has been applied, and continues to be 

applied, to all Delivery Driver employees in Defendants’ stores.

92. Plaintiff and all similarly situated employees are entitled to damages 

equal to the minimum wage minus actual wages received after deducting 

reasonably approximated automobile expenses within three years from the 

date each Plaintiff joins this case, plus periods of equitable tolling, because 

Defendants acted willfully and knew, or showed reckless disregard for, 

whether their conduct was unlawful.

93. Defendants have acted neither in good faith nor with reasonable 

grounds to believe that their actions and omissions were not a violation of the 

FLSA, and as a result, Plaintiff and other similarly situated employees are 

entitled to recover an award of liquidated damages in an amount equal to the 

amount of unpaid minimum wages under 29 U.S.C. § 216(b). Alternatively, 

should the Court find Defendants acted in good faith and with reasonable 

grounds to believe their actions were lawful, Plaintiff and all similarly situated 

Case 3:16-cv-08011-SRB Document 1 Filed 01/25/16 Page 28 of 40
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employees are entitled to an award of prejudgment interest at the applicable 

legal rate.

94. As a result of the aforesaid willful violations of the FLSA’s minimum 

wage provisions, minimum wage compensation has been unlawfully withheld 

by Defendants from Plaintiff and all similarly situated employees. 

Accordingly, Defendants are liable under 29 U.S.C. § 216(b), together with an 

additional amount as liquidated damages, pre-judgment and post-judgment 

interest, reasonable attorneys’ fees, and costs of this action.

WHEREFORE, Plaintiff and all similarly situated Delivery Drivers demand 

judgment against Defendants and request: (1) compensatory damages; (2) 

liquidated damages; (3) attorneys’ fees and costs as allowed by Section 16(b) of 

the FLSA; (4) pre-judgment and post-judgment interest as provided by law; 

and (5) such other relief as the Court deems fair and equitable.

COUNT III: Violation of the FLSA by Failing

to Pay for All Time Worked

95. Plaintiff reasserts and re-alleges the allegations set forth above.

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96. At all relevant times herein, Plaintiff and all other similarly situated 

Delivery Drivers have been entitled to the rights, protections, and benefits 

provided under the FLSA, 29 U.S.C. §§ 201, et seq.

97. Section 13 of the FLSA, 29 U.S.C. § 213, exempts certain categories of 

employees from federal minimum wage obligations, but none of the FLSA 

exemptions apply to Plaintiff or other similarly situated Delivery Drivers.

98. The FLSA regulates, among other things, the payment of minimum 

wage by employers whose employees are engaged in interstate commerce, or 

engaged in the production of goods for commerce, or employed in an 

enterprise engaged in commerce or in the production of goods for commerce. 

29 U.S.C. §206(a).

99. Defendants are subject to the FLSA’s minimum wage requirements 

because they are an enterprise engaged in interstate commerce, and their 

employees are engaged in commerce.

100.Under Section 6(a) of the FLSA, 29 U.S.C. § 206(a), employees have been 

entitled to be compensated at a rate of at least $7.25 per hour since July 24, 

2009. Id.

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101.As alleged herein, Defendants have failed to pay Delivery Drivers the 

federal minimum wage after deduction of unreimbursed vehicle expenses 

incurred in performing their jobs for Defendant and failure to for pay all time 

worked. 

102.Defendants knew or should have known that their pay and 

reimbursement policies, practices and methodology result in failure to 

compensate Delivery Drivers at the federal minimum wage.

103.Defendants, pursuant to their policy and practice, violated the FLSA by 

refusing and failing to pay federal minimum wage to Plaintiff and other 

similarly situated employees.

104.Plaintiff and all similarly situated Delivery Drivers are victims of a 

uniform and employer-based compensation and reimbursement policy. This 

uniform policy, in violation of the FLSA, has been applied, and continues to be 

applied, to all Delivery Driver employees in Defendants’ stores.

105.Plaintiff and all similarly situated employees are entitled to damages 

equal to the minimum wage between the time they are required to arrive at 

work to the time that Defendants are ready to dispatch them on their first 

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delivery of the shift within three years from the date each Plaintiff joins this 

case, plus periods of equitable tolling, because Defendants acted willfully and 

knew, or showed reckless disregard for, whether their conduct was unlawful.

106.Defendants have acted neither in good faith nor with reasonable 

grounds to believe that their actions and omissions were not a violation of the 

FLSA, and as a result, Plaintiff and other similarly situated employees are 

entitled to recover an award of liquidated damages in an amount equal to the 

amount of unpaid minimum wages under 29 U.S.C. § 216(b). Alternatively, 

should the Court find Defendants acted in good faith and with reasonable 

grounds to believe their actions were lawful, Plaintiff and all similarly situated 

employees are entitled to an award of prejudgment interest at the applicable 

legal rate.

107.As a result of the aforesaid willful violations of the FLSA’s minimum 

wage provisions, minimum wage compensation has been unlawfully withheld 

by Defendants from Plaintiff and all similarly situated employees. 

Accordingly, Defendants are liable under 29 U.S.C. § 216(b), together with an 

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additional amount as liquidated damages, pre-judgment and post-judgment 

interest, reasonable attorneys’ fees, and costs of this action.

WHEREFORE, Plaintiff and all similarly situated Delivery Drivers demand 

judgment against Defendants and request: (1) compensatory damages; (2) 

liquidated damages; (3) attorneys’ fees and costs as allowed by Section 16(b) of 

the FLSA; (4) pre-judgment and post-judgment interest as provided by law; 

and (5) such other relief as the Court deems fair and equitable.

COUNT IV: Violation of the AEPWCL by Failing

to Reasonably Reimburse Vehicle Expenses

108.At all relevant times herein, Plaintiff and the Class have been entitled to 

the rights, protections, and benefits provided under the AEPWCL, A.R.S. § 23-

201 et seq. 

109.No exemption to the AEPWCL applies to Plaintiff or the Class. 

110.Arizona law regulates, among other things, the payment of minimum 

wage by employers who employ any person in Arizona. A.R.S. § 23-363. 

111.During all times relevant to this action, Defendants were the 

“employers” of Plaintiff and the Class within the meaning of Arizona law. 

A.R.S. § 23-362(B).

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112.During all times relevant to this action, Plaintiff and the Class were 

Defendants’ “employees” within the meaning of Arizona law. A.R.S. § 23-

362(A).

113.Under A.R.S. § 23-363, employees have been entitled to be 

compensated, with or without a tip credit, at a rate of at least $7.80 per hour in 

2013, at least $7.90 per hour in 2014, and at least $8.05 per hour since 2015. 

http://www.govdocs.com/ arizona-2015-minimum-wage-increase/.

114.As alleged herein, Defendants have failed to pay Delivery Drivers 

Arizona’s minimum wage after deduction of unreimbursed vehicle expenses 

incurred in performing their jobs for Defendant. 

115.Defendants knew or should have known that their pay and 

reimbursement policies, practices and methodology result in failure to 

compensate Delivery Drivers at Arizona’s minimum wage.

116.Defendants, pursuant to their policy and practice, violated Arizona law 

by refusing and failing to pay Arizona’s minimum wage to Plaintiff and other 

similarly situated employees.

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117.Because Defendants acted willfully and knew, or showed reckless 

disregard for, whether their conduct was unlawful, Plaintiff and all similarly 

situated employees are entitled to damages equal to the minimum wage minus 

actual wages received after deducting reasonably approximated automobile 

expenses within three years from the date each Plaintiff joins this case, plus a 

period of time encompassing all violations that occurred as part of a 

continuing course of employer conduct regardless of the date. A.R.S. § 23-

364(H).

118.Plaintiff and all similarly situated employees are entitled to additional 

damages equal to two times the difference between the minimum wage and 

actual wages received within the three years preceding the filing of this 

Complaint, plus a period of time encompassing all violations that occurred as 

part of a continuing course of employer conduct regardless of the date. A.R.S. 

§§ 23-364(G) & (H). 

119.Plaintiff and the Class are entitled to an award of pre-judgment and 

post-judgment interest at the applicable legal rate. Id. 

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120.Defendants are also liable for Plaintiff’s costs and attorney’s fees 

incurred in this action. Id. 

WHEREFORE, Plaintiff and the Class demand judgment against 

Defendants and pray for: (1) compensatory damages; (2) liquidated damages, 

(3) costs of litigation and attorney’s fees as provided by law; (4) pre-judgment 

and post-judgment interest as provided by law; and (5) such other relief as the 

Court deems fair and equitable.

COUNT V: Violation of the AEPWCL

by Failing to Pay for All Time Worked

121.At all relevant times herein, Plaintiff and the Class have been entitled to 

the rights, protections, and benefits provided under the AEPWCL, A.R.S. § 23-

201 et seq. 

122.No exemption to the AEPWCL applies to Plaintiff or the Class. 

123.Arizona law regulates, among other things, the payment of minimum 

wage by employers who employ any person in Arizona. A.R.S. § 23-363. 

124.During all times relevant to this action, Defendants were the 

“employers” of Plaintiff and the Class within the meaning of Arizona law. 

A.R.S. § 23-362(B). 

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125.During all times relevant to this action, Plaintiff and the Class were 

Defendants’ “employees” within the meaning of Arizona law. A.R.S. § 23-

362(A).

126.Under A.R.S. § 23-363, employees have been entitled to be 

compensated, with or without a tip credit, at a rate of at least $7.80 per hour in 

2013, at least $7.90 per hour in 2014, and at least $8.05 per hour since 2015. 

http://www.govdocs.com/ arizona-2015-minimum-wage-increase/.

127.As alleged herein, Defendants have failed to pay Delivery Drivers 

Arizona’s minimum wage between the time they are required to arrive at 

work to the time that Defendants are ready to dispatch them on their first 

delivery of the shift.

128.Defendants knew or should have known that their pay and 

reimbursement policies, practices and methodology result in failure to 

compensate Delivery Drivers at Arizona’s minimum wage.

129.Defendants, pursuant to their policy and practice, violated Arizona law 

by refusing and failing to pay Arizona’s minimum wage to Plaintiff and other 

similarly situated employees.

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130.Because Defendants acted willfully and knew, or showed reckless 

disregard for, whether their conduct was unlawful, Plaintiff and all similarly 

situated employees are entitled to damages equal to the minimum wage minus 

actual wages received after deducting reasonably approximated automobile 

expenses within three years from the date each Plaintiff joins this case, plus a 

period of time encompassing all violations that occurred as part of a 

continuing course of employer conduct regardless of the date. A.R.S. § 23-

364(H).

131.Plaintiff and all similarly situated employees are entitled to additional 

damages equal to two times the difference between the minimum wage and 

actual wages received within the three years preceding the filing of this 

Complaint, plus a period of time encompassing all violations that occurred as 

part of a continuing course of employer conduct regardless of the date. A.R.S. 

§§ 23-364(G) & (H). 

132.Plaintiff and the Class are entitled to an award of pre-judgment and 

post-judgment interest at the applicable legal rate. Id. 

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133.Defendants are also liable for Plaintiff’s costs and attorney’s fees 

incurred in this action. Id. 

WHEREFORE, Plaintiff and the Class demand judgment against 

Defendants and pray for: (1) compensatory damages; (2) liquidated damages, 

(3) costs of litigation and attorney’s fees as provided by law; (4) pre-judgment 

and post-judgment interest as provided by law; and (5) such other relief as the 

Court deems fair and equitable.

Demand for Jury Trial

Plaintiff hereby requests a trial by jury of all issues triable by jury.

DATED this 25th day of January, 2016. Respectfully submitted,

PAUL McINNES LLP

Jack D. McInnes (MO Bar #56904)

(pro hac vice forthcoming)

601 Walnut, Suite 300

Kansas City, Missouri 64106

Telephone: (816) 981-8100

Facsimile: (816) 981-8101

mcinnes@paulmcinnes.com 

WATTS GUERRA LLP

Ryan Thompson

Four Dominion Drive

Building Three, Suite 100

San Antonio, Texas 78257

Telephone: (210) 447-0500

Facsimile: (210) 447-0501

rthompson@wattsguerra.com

WEINHAUS & POTASHNICK

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Mark A. Potashnick

(pro hac vice forthcoming)

11500 Olive Blvd., Suite 133

St. Louis, Missouri 63141

Telephone: (314) 997-9150

Facsimile: (314) 997-9170

markp@wp-attorneys.com

ATTORNEYS FOR PLAINTIFF

Case 3:16-cv-08011-SRB Document 1 Filed 01/25/16 Page 40 of 40