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Laurent R.G. Badoux, AZ Bar No. 020753

LBadoux@Buchalter.com

BUCHALTER

16435 N. Scottsdale Rd., Suite 440

Scottsdale, Arizona 85254

Telephone: (480) 383-1800

Facsimile: (480) 824-9400

Attorneys for Defendants

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Josephine Tijerino,

Plaintiff,

v.

Stetson Desert Project LLC d/b/a Le Girls 

Cabaret, Cory J. Anderson, and Cary 

Anderson,

Defendants.

Case No. 2:15-CV-02563-SMM

(Consolidated with Case Nos. 2:15-cv- 02564 and 2:16-cv-00408

DEFENDANTS’ MOTION FOR 

SUMMARY JUDGMENT

Tamicka Toliver,

Plaintiff,

v.

Stetson Desert Project LLC d/b/a Le Girls 

Cabaret, Cory J. Anderson, and Cary 

Anderson,

Defendants.

Jane Roe Dancer,

Plaintiff,

v.

Stetson Desert Project LLC d/b/a Le Girls 

Cabaret, Cory J. Anderson, and Cary 

Anderson,

Defendants.

Defendants Stetson Desert Project LLC d/b/a Lé Girls Cabaret, Cory J. Anderson, 

and Cary Anderson, by and through counsel, hereby submit their Motion for Summary 

Case 2:15-cv-02563-SMM Document 107 Filed 07/24/20 Page 1 of 18
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Judgment. At this juncture of the consolidated cases, all Plaintiffs, with the exception of 

Jane Roe Dancer 2 (“Remaining Plaintiff”), have been dismissed from this action upon a 

settlement, or, in the case of Plaintiff Tijerino, a request for dismissal, all of which were 

submitted to the Court for review and approval. 

I. INTRODUCTION

Three lawsuits brought in 2015 and 2016, involving six individual claimants, were 

consolidated in this Court. The Court denied Plaintiff’s request for collective action 

certification in December 2016, and asked for briefing on the issue of whether lead 

Plaintiff and other claimants were independent performers or employees. The Parties 

completed three depositions and exchange of documentary evidence. Following extensive 

briefing and submission of supporting evidence by Defendants, the Court dismissed the 

matter. Plaintiffs appealed and the case was remanded. Following a Rule 16 conference, 

the Court entered a new case management order, which provided, inter alia, that the 

parties had to complete discovery on or by June 12, 2020. The Parties requested a 10-day

extension for completion of depositions and exchange of documents until June 22, 2020.

Remaining Plaintiff’s deposition was duly scheduled for June 19, 2020, to be taken 

remotely to minimize COVID-19 transmission risk. On June 18, 2020, then counsel for 

Jane Roe Dancers informed the undersigned that Jane Roe Dancer 2 had not been 

communicative and did not indicate she would appear for her deposition the next day, 

which she did not, as attested to by the attending court reporter. Subsequent efforts this 

month to engage the Remaining Plaintiff via phone and mail proved unsuccessful.

The record remains limited to the same information available to the Parties and 

previously presented to the Court in briefing on the issue of applicability of the Economic 

Realities Test under the FLSA. Given the timing of Remaining Plaintiff’s failure to 

appear at her deposition, Defendants set forth reasons why the Court should dismiss this 

lawsuit as a matter of law under Rule 56, or as a matter of sanction within the Court’s 

discretion under Rule 37.

As previously indicated to the Court, Defendants sought the ability to conduct the 

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depositions of all Plaintiffs, starting in 2016 and had noticed such depositions in a timely 

fashion but Plaintiffs’ counsel’s schedule precluded these depositions from occurring in 

January or June 2017. The unavailability of the Jane Roe Dancer Plaintiffs, including 

Remaining Plaintiff, is not a matter of Defendants’ lack of effort to secure such 

testimony, but rather an unwillingness of the Plaintiffs to subject themselves to 

examination. 

Based upon the available evidence, however, Defendants maintain, as they have 

throughout this lawsuit, that Remaining Plaintiff (or any of the Plaintiffs for that matter) 

cannot establish she was an employee under the applicable FLSA standards. 

II. LEGAL ARGUMENT

A. Plaintiff Is An Independent Performer Under The Economic 

Realities Test And Is Not Covered By The FLSA.

The Economic Realities Test applies to assess whether an individual is legally an 

employee under the Fair Labor Standards Act (FLSA). Real v. Driscoll Strawberry

Assocs., Inc., 603 F.2d 748, 754-755 (9th Cir. 1979) (adopting six-factor test). Although 

Remaining Plaintiff has argued throughout this case that a nationwide wave of lawsuits 

filed against “gentlemen’s clubs,” as the term is sometimes used, supported the position 

that she was an employee, it became clear that the unique policies in place at Defendants’ 

venue (“Lé Girls”) were vastly different than those analyzed in other decisions. Because 

this case is unique, reliance upon other industry decisions, though instructive, cannot be 

dispositive, whether the decision supports a finding of employee or independent 

contractor status. Compare Hillborn v. Prime Time Club, Inc., No. 4:11CV00197 BSM, 

2012 WL 9187581 (E.D. Ark. July 12, 2012) (finding exotic dancer to be independent 

performer) with Clincy v. Galardi S. Enters, Inc., 808 F. Supp. 2d 1326 (N.D. Ga. 2011) 

(finding exotic dancers that were subject to extensive house rules to be employees).

Understandably, most of the selected targets of these lawsuits were clubs that 

imposed extensive controls over entertainers, a factor that is conspicuously absent here.

This stark difference is best exemplified by contrasting the facts of the Clincy decision 

Case 2:15-cv-02563-SMM Document 107 Filed 07/24/20 Page 3 of 18
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with the realities of the relationship between Lé Girls and performers including 

Remaining Plaintiff. In Clincy, the club (“Onyx”) required entertainers to adhere to a 

detailed set of “Rules of Conduct” or face discipline (for which Onyx had forms called 

corrective action forms) in the form of suspensions and fines: adhering to a schedule, 

calling in sick with enough notice and with proof of incapacity to perform; refraining 

from appearing at other clubs, meeting Onyx’s physical and grooming standards before 

appearing, committing to appear at least four times per week and appear on a minimum 

numbers of “slow days;” reporting on time; refraining from leaving early or without 

completing Onyx’s check-out procedure; refraining from bringing outside food; changing

appearances or dance routine at management’s request; allowing tips for all dancers 

appearing on stage to be collected by management; reporting all tips earned to 

management; agreeing to random drug testing. 808 F. Supp. 2d at 1330-36. See also Hart 

v. Rick’s Cabaret Int’l, Inc., 967 F. Supp. 2d 901 (S.D.N.Y. 2013) (relying upon an even 

more exhaustive list of rules through which Rick’s Cabaret controlled the work of 

entertainers). Lé Girls applied none of those rules that appear prevalent at many of the 

clubs that have been embroiled in similar lawsuits.

Thus, no matter how many decisions Plaintiff’s counsel have enumerated over the 

course of this action, it is undisputed that each case stands on its own merit in the 

application of the six-factor test, and that the realities of the relationship between Lé Girls 

and licensed entertainers like Remaining Plaintiff are unique to this establishment.

The Economic Realities Test presents six (6) factors. Factors that shed light on 

Remaining Plaintiff’s status as an independent performer are: 

1. The degree of control the alleged employer exercises over 

the individual;

2. The individual’s opportunity for profit or loss;

3. The individual’s investment in the business; 

4. The degree of skill required to perform the work; 

5. The permanence of the working relationship; and

6. The extent to which the work performed is an integral 

part of the alleged employer’s business.

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Real, 603 F.2d at 754-755; see also A.A.C. R20-5-1205 (promulgated through 13 

A.A.R. 4315). The uncontroverted evidence demonstrates that the test overall confirms 

the existence of an independent relationship between Club and Remaining Plaintiff.

1. Absence of Control Over Performance.

As the Court previously noted in its earlier ruling, the presence or absence of 

control over a person looms large in this analysis. The reality of the relationship between 

the Club and individual licensees is that the Club exercises virtually no control over 

them. See Deposition of Corporate Defendant’s 30(b)(6) representative, Joshua Thornton 

(“Thornton Depo.”) at 141:11-24 (“Q: “Is it your testimony that the Club has no control 

over [...] the flow of—time in which [any dancer] shows up to work in a given 

workweek? A: Yes”) (noting also that the Club never sends a dancer home because there 

are too many on site), excerpts from which are attached hereto as Exhibit B. The 

following undisputed facts demonstrate the utter absence of control by Defendants:

• Dancers, including Remaining Plaintiff, signed a License Agreement that 

spells out their right to use the premises of the Club for the purpose of 

performing erotic dancing; that agreement memorializes that the dancer is 

an independent performer, not an employee. A Sample License Agreement 

was used during Thornton Deposition (as Exh. 8). It is referred to herein as 

the “License Agreement.” A copy is attached hereto as Exhibit A.

• The Club maintains no schedule for dancers; each dancer is free to appear 

at the Club when and for however long (sometimes as long as the Club is 

open) or little (sometimes as short as a few minutes, if the Club is busy or 

the dancer immediately earned the amount of money she was looking to 

earn) the dancer pleases. Thornton Depo. at 142:21-144:10; 171:21-172:8. 

• Defendants’ records show that Remaining Plaintiff, who performed under 

the name Bria, appeared only a handful of times at the Club and always at 

different times, and negotiated a reduced license fee on several occasions. 

See Exhibit E hereto (Defs 100-107).

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• Dancers are free to perform however they choose at the Club; there is no 

rule for how to dance or how to interact with patrons, besides those that the 

City of Phoenix imposes upon erotic dancing, within the confines of the 

First Amendment, which protects dancing as a form of constitutionally 

protected expressive speech. Thornton Depo. at 147:2-150:1.

• Dancers are free to leave the premises at any time, free to take a break on 

site, eat, go outside to smoke a cigarette, place phone calls, have a drink or 

sit at the bar. They do not have to provide an excuse or reason for the 

decision to leave the establishment. See Deposition of Josephine Tijerino 

(“Tijerino Depo.”) at 81:15-82:9, excerpts from which are attached as 

Exhibit C; Thornton Depo. at 175:3-176:6.

• Dancers are free to dance at other establishments, which many do or did, 

including original Plaintiffs Tijerino and Toliver, who admitted dancing at 

multiple clubs simultaneously. License Agreement at ¶9.2; Tijerino Depo.

at 21:25-27:8; Deposition of Tamicka Toliver (“Toliver Depo.”) at 34:23-

35:10 (understanding she was free to appear at any club even while still 

licensed at Lé Girls); 64:3-16 (auditions), excerpts of which are attached 

hereto as Exhibit D.

• Dancers are free to take long hiatus from appearing at the Club. As Plaintiff 

Tijerino testified, she went sometimes weeks or months in between 

appearances at Lé Girls, while appearing at other clubs in Arizona or out of 

state. Toliver appeared at three separate clubs (Lé Girls, Fox’s and 

Xecutives), Toliver Depo. at 34:23-35:10, and auditioned at two more 

(Christie’s and Jaguars). Toliver Depo. at 64:3-16. Tijerino appeared at 

more than 10 separate clubs (Eden, Curves, Great Alaskan Bush Company, 

Hustler’s, Spearmint Rhino (Los Angeles and Las Vegas), Lé Girls, 

Bombshells, Christie’s, and three other locations in San Diego and metro 

Los Angeles that she could not recall). See Tijerino Depo at 19:12-27:8 and 

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84:10-23. Similarly, Defendants only have records for Remaining Plaintiff 

appearing at the Club on six occasions over the course of 14 months 

(February 2014 to April 2015).

• Club management did not (and could not) discipline or fine entertainers for 

non-compliance with any Club rules, because the Club did not actively 

maintain any set of rules for dancers and did not control what they earned 

from appearances. Thornton Depo. at 128:11-130:15 (identifying no 

posting or flyer used to communicate rules to dancers) and 146:25-147:1. 

• Dancers can dance on either the fully-nude or topless side of the Club.

Plaintiff Tijerino appeared on both sides of the Club, and Defendants 

believe that is true of many other dancers. Tijerino Depo at 59:9-12.

• Dancers receive no wages from Defendants and never have in the decades 

that the establishment has been in operations. See License Agreement ¶8.4; 

Thornton Depo. at 128:1-9.

• The Club does not control or monitor what dancers receive in gratuities nor 

report to taxing authorities. See License Agreement at ¶¶7.2.7 & 7.2.8.

• The Club does not dictate how much a dancer can or may charge a patron 

for a dance anywhere else in the Club except in the VIP area. Thornton 

Depo. at 133:8-135:10 (Club suggests an industry standard of $10 to $20 

per song, depending on area of the floor but dancers are free to set a 

different rate with a client; none of the monies dancers collect are 

monitored or accounted for by the Club); see Toliver Depo. at 76:2-8.

• Dancers are free to use, or refrain from using, any of the areas made 

available at the Club, meaning that Remaining Plaintiff had no obligation to 

appear on stage, could use any area within the Club, and was not obligated 

to dance at all. Indeed, dancers are free to simply hang out with a patron

and receive whatever gratuity or beverage the patron is willing to provide 

the dancer without any performance. Thornton Depo. at 172:2-8.

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In prior submissions, Plaintiffs asserted that Defendants controlled them generally 

because of (a) the physical layout of the Club; (b) management’s monitoring of the use of 

the VIP area; and (c) the rotation of dancers appearing on stages. The reality is that none 

of these three elements represents control of any kind over the independent performer.

First, each dancer is free to use any part of the Club the dancer sees fit. Toliver

preferred not to use the VIP areas so that she could collect monies from her performances 

directly from patrons without going through the Club for collection of a VIP fee even 

though she could make more per dance in the VIP areas. Toliver Depo. at 98:20-100:4.

Second, VIP areas create a personalized environment in exchange for an additional 

cost to the patron for use. Because costs can be substantial, the Club collects payment 

upfront, often via credit card. The Club pays the bulk of collected fees to the performer at 

the time of her departure, but the dancer could collect cash upfront herself as well.

Whether a dancer uses the VIP areas and for how long, is up to her; how much time the 

patron wants to spend in the VIP areas is up to the patron and the dancer accompanying

that patron in the VIP area. Thornton Depo. at 154:17-158:9. Again, a dancer has no 

obligation to dance for any patron and can actually elect not to dance at all, but simply 

provide companionship. According to Remaining Plaintiff’s documents, she used the VIP 

area at least once but not on other occasions when she appeared at the Club.

Third, as represented in the License Agreement, Remaining Plaintiff was free to 

participate or refrain from participating in the main stage rotation. Thornton Depo. at 

117:11-118:21. The dancer does not have to provide a reason for it and can take her name 

out of the rotation whenever desired, or have it placed in the rotation whenever desired.

The rotation is obviously designed to allow equal time for all the performers that wish to 

appear on the main stage to showcase themselves and their dancing to the entire Club.

These elements are not indicia of control at all. They certainly demonstrate how 

much different the management of the Club was in contrast to many of the other venues 

described in the cases Plaintiffs enumerated previously. When evaluated objectively, the 

policies at the Club evidence the freedom that Remaining Plaintiff enjoined at the Club. It 

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would be losing the forest for the trees to claim that individuals that can come and go at 

their leisure, perform (or refrain therefrom) in any manner they see fit while at the Club

(within the bounds of what is allowable by law, of course), apply their trade at other 

venues freely, never place their name on a schedule, never be bound by a personnel 

handbook or a set of employment policies and never be trained, fined or disciplined are 

employees. As the Court of Appeals for the Seventh Circuit indicated in another 

employment classification case, sometimes the answer is so obvious that application of a 

test designed to assist in the decision-making process is unnecessary. See Callahan v. 

City of Chicago, No. 15-1318, 2016 U.S. App. LEXIS 2667 (7th Cir. Feb. 17, 2016)

(eschewed the Economic Realities Test analysis finding that taxicab drivers were clearly 

independent operators not employees of the City of Chicago under the FLSA).

As the Court previously determined, this most crucial factor weighs heavily in 

favor of finding that the dancers were independent performers and not employees. Even if 

less probative factors may tend to support the opposite view, they cannot overcome the 

overwhelmingly clear conclusion that Defendants did not control Remaining Plaintiff.

2. Licensees Have an Opportunity for Profit and Loss.

Remaining Plaintiff had a significant opportunity for profit and loss. Remaining 

Plaintiff always maintained a presence in Las Vegas and had no obligation to appear 

consistently at a gentlemen’s club in Phoenix, let alone Lé Girls. In fact, Defendants’ 

records show she did not appear at the Club frequently. Exh. F. It is undisputed that 

dancers are free to determine what they will accept from patrons for performing, when 

they will perform, how they will perform, and where they will perform. Specifically, 

when a dancer appears at a Club often determines the volume of patrons she will 

encounter. Patrons are the ones that determine whether they will frequent a gentlemen’s 

club and when. Lé Girls has no more say in the matter than the dancers. Dancers may 

have more say in the matter because dancers with a regular clientele can often contact 

such regulars in an effort to get them to come and watch them perform, or schedule their 

Club appearances at time when they know their regular(s) will be at the Club.

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In prior papers, Plaintiffs have argued that they did not control Club operations.

Although true, there is no absolute requirement for such control under the Economic 

Realities Test. An entertainer does not have to have full control of a performance venue 

to be independent. First, dancers, by their choice of where they perform, certainly have a 

say in the overall operations of the Club. There are dozens of other clubs in the greater 

Phoenix area that Remaining Plaintiff could have chosen besides Lé Girls. Remaining 

Plaintiff, as any performer, was free to require payment in advance and at any rate she

sees fit. No one at Lé Girls controlled Remaining Plaintiff’s discussions with patrons. In 

fact, the Club does not control the volume of customers in the Club. Entertainers with 

established clientele are more apt to drive patron traffic than the Club.

Patrons can pay cash for the entertainer’s time. Patrons and entertainers are free to 

and use the Club’s credit card terminal if they wish to use their credit cards, and are 

certainly free to obtain a cash advance on their credit card to make cash payments in the 

Club. Dancers are free to reach any arrangement they may want with patrons both in the 

VIP areas of the Club and elsewhere on the premises, including requiring advance 

payment. Thornton Depo at 159:20-25. Further, when Defendants remodeled Lé Girls in 

2014, dancers had input on the rates for VIP area entry. Thornton Depo at 121:6-19.

As opposed to other clubs in reported decisions, such as Onyx or Rick’s Cabaret, 

dancers at Lé Girls are free to appear at other venues. See License Agreement at ¶9

(“Performer is free to perform at any other adult entertainment venue, including while she 

is performing at Lé Girls...”). Because they are not tied to any particular venue, the 

proper analysis should relate to whether they, as performers, have the opportunity for 

profit or loss regardless of where they elect to appear. Indeed, that is the case.

It is undisputed that Remaining Plaintiff was responsible for the cost of her 

license, both in Phoenix and in Las Vegas, dancing outfits and shoes, makeup and 

personal grooming products, transportation and appearance fees. Although the risk of loss 

is less than Lé Girls, in pure economic terms, the impact of the risk each dancer takes is 

significant in relation to each dancer’s investment. It is paternalistic and result-oriented to 

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belittle the investments and risks that confront individual dancers by comparing them to 

the Club’s more substantial investments and risks, as measured in raw numbers only. The 

reality is that a dancer’s risk of finishing a performance with less money than before is 

quite substantial in both economic and personal terms (as dancing naked or virtually 

naked in front of strangers is by no means the easy feat that the litigants cavalierly claim).

Thus, although the Club’s investment is greater than Remaining Plaintiff in pure 

monetary value, the investment and risk in relation to each party’s financial capabilities is 

not dissimilar and no less material to each party respectively. 

Dancers, including Remaining Plaintiff, are free to keep a list of regular clients 

and use their time in any way they see fit. Tijerino Depo. at 77:20-79:9. How much and 

to what activities dancers allocate their time are crucial aspects of their ability to make a 

profit. A dancer faces the risk of losing money on any given outing if she does not 

manage her time well or does not have regulars to call on. Much as the Club demands no 

commitment of any kind from a dancer, the Club offers no guarantee of earnings to 

dancers. Indeed, the Club markets itself equally to dancers and patrons. As original 

claimant Tijerino stated, she continued to perform at Lé Girls on and off for several 

months because she enjoyed the atmosphere of the Club, even though she had to drive 

approximately 120 miles to get to Lé Girls from Tucson or even more when coming from 

California. Tijerino Depo. at 19:12-28:8 and 84:10-23. 

3. Relative Investment.

Defendants recognize that operating the Club requires outlay of various costs for a 

venue that generates approximately $1.5 million in gross annual revenue. The Club does 

not have to pay rent as one of the Defendants owns the premises, as opposed to many 

other venues that have been sued for similar claims. Further, Remaining Plaintiff 

provided no earning or tax record, although she was requested to make it available for 

inspection at her deposition, which she did not attend. By failing to provide this data, 

Remaining Plaintiff has failed to meet her burden and the Court should find that this 

factor is either neutral in the analysis or supports Defendants’ position.

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4. Special Skill Set.

As Joshua Thornton, 30(b)(6) representative for corporate Defendant, testified, 

Defendants do not maintain a standard of beauty or attractiveness that dancers must meet 

or maintain. Whether dancers can be successful erotic entertainers is a natural skill that 

they possess or develop and refine over time. Adult Cabaret Performers must be licensed 

and profess their knowledge of the rules and regulations that the City of Phoenix imposes 

upon them. Dancers at Lé Girls are free to perform any physical dance or routine they 

want in compliance with those regulations. How a dancer adapts to that level of freedom, 

dances and interacts effectively with a wide range of patrons, and excels at entertaining 

most of them is an undeniable skill set. Similarly, the ability to connect with patrons and 

get paid in exchange for entertainment is a skill that goes unrecognized in many of the 

discussions on this issue in most cases on the topic. It is true, as this Court noted, that 

previous decisions have generally found the skill set involved in being an entertainer as 

nominal. The Court has also recognized, accurately, that this factor is usually of nominal

impact on the analysis, and was no impediment to this Court’s earlier decision or in 

finding that taxi drivers were not employees. See Iontchev v. AAA Cab Inc., No. CV-12-

00256-PHX-ROS, 2015 WL 1345275 at *4-5, *7 (D. Ariz. Mar. 18, 2015), aff’d No. 15-

15789 (9th Cir. Mar. 27, 2017) (Memorandum Opinion).

Nevertheless, Defendants continue to maintain that the skill set involved is often 

downplayed. Plumbers, electricians or standup comedians may not require extensive 

training to enter their line of work (or even a license), and only the comedian’s activities 

would be protected by the First Amendment, yet many of us lack the skill set to do their 

work, yet these vocations are deemed to possess special skills. The same supports 

considering erotic entertainment as a special skill worthy of recognition under this prong.

5. No Permanency in Working Relationship.

Dancers are inherently mobile and frequently elect to dance at multiple clubs.

Remaining Plaintiff has had residency and has danced in Phoenix and Las Vegas.

Original claimant Tijerino exemplified this mobility, testifying that she appeared at well 

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over a dozen clubs throughout Arizona, California and Nevada. She would club hop from 

location to location, often alternating between venues or appearing at multiple venues 

during a similar timeframe. As courts have generally recognized, mobility is the antithesis of an employment relationship. See Clincy, 808 F. Supp. 2d at 1348. Because 

Remaining Plaintiff had no obligation to be exclusive to the Club, this factor weighs 

strongly in favor of non-employee status.

6. Relevance of Entertainers to the Venue.

Defendants recognize that performers are relevant to its operations. The Club 

markets itself both to patrons and to performers as a comfortable and attractive venue.

Because they are not employees, dancers are free to consume alcohol on the premises of 

the Club (alcohol is allowed on the topless side) and they are consumers of the Club’s 

services. Lé Girls is very much like a music venue. It undeniably caters to both musical 

acts and patrons, and musical acts are part and parcel of the venue experience. Yet, the 

musical performances are not within the control of the venue. As a result, the music 

venue is not an employer to the musical acts that perform on its premises, even if they are 

frequent performers. Similarly, Defendants contend that this factor is neutral in the 

analysis and certainly too tangential to be dispositive of the issue.

7. Overall Considerations.

Remaining Plaintiff provided no evidence that Defendants imposed control over 

her at the Club. She and other performers, as Tijerino and Toliver demonstrated in their 

testimony, were free to appear at any venue of their own choosing which markedly 

decreases her argument that dancers are not “in business for themselves.” Indeed, 

Remaining Plaintiff was not like a server and bartender dependent on someone else’s 

business to earn a living. This argument conveniently glosses over the most fundamental 

element of this analysis of economic realities: what employer would tolerate that its wait

staff would come and go as they please, without schedules or time commitments, without 

any rules controlling their performance, without disciplinary processes and without 

supervision from managers? The answer is obvious: no employer would allow such a 

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state of affair. The reason is equally obvious in that an employer without workplace rules 

could not ensure that its employees deliver the requisite product to its clients. Here, the 

Club is Defendants’ product, and patrons and dancers alike are the Club’s clients. If the 

Club does not deliver the proper atmosphere, entertainers do not come to perform and 

patrons do not come to watch them. Within the protection of the First Amendment and 

the regulations promulgated by the City of Phoenix, Defendants provide a venue where 

Plaintiff and other dancers elected to perform on their own terms and at their choosing.

1

In this situation, the Economic Realities Test, regardless of its value in other 

settings, confuses the issue by setting up tangential inquiries that serve more to obfuscate 

the reality than clarify it. Here, the Club is a venue where independent performers can 

showcase their unique and highly-regulated trade, namely erotic entertainment, and 

patrons can come to enjoy their performances. A performance venue that does not control 

the performers that appear there, whether they be musical acts, burlesque shows, standup 

comedians, or other types of performances, does not employ the performers. Performers 

earn money based upon the quality of their performance. This is why Lé Girls enters into 

a license agreement with dancers, so it is clear between the parties that performers are 

merely paying for the right (or temporary license) to perform at the venue, a venue which 

is itself duly licensed to allow the highly regulated type of entertainment dancers provide. 

As Judge Silver found in Iontchev, where the first two factors of the Economic Realities 

Test overwhelmingly support the independent contractor model, that the remaining 

factors are neutral or even nominally suggestive of an employee relationship, the 

balancing of the factors lead unequivocally to a finding that the claimant is an 

independent licensee, not an employee. Id. at *5-6.

B. Discovery Sanction

Remaining Plaintiff did not appear at her properly scheduled deposition. See 

Affidavit of Court Reporter is attached hereto as Exhibit F. Defendants requested on three 

 1 This is not to say that the Club could not operate in a different fashion, with entertainers 

appearing solely on stage, such as in burlesque acts.

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separate occasions to depose Remaining Plaintiff. On the first two occasions, in January 

and June 2017, Defendants agreed to postpone the deposition at opposing parties’ request 

in conjunction with other activities in the case. As the close of discovery approached, 

Defendants asked for alternate dates for depositions of the Plaintiffs by and through 

counsel. To accommodate schedules, production of information and settlement 

discussions, the Parties agreed to extend the discovery deadline to June 22. This Court 

approved this request. Counsel for the Parties coordinated deposition times for witnesses 

on June 18, 19 and 22. 

On or about June 18, 2020, Plaintiffs’ counsel informed Defendants that 

Remaining Plaintiff had not responded to inquiries from counsel and could not confirm 

whether she would be appearing at her duly noticed deposition. Counsel for Plaintiffs

entered into a settlement on behalf of the other Jane Roe Plaintiffs and moved to 

withdraw from representation of Remaining Plaintiff immediately before her deposition 

was set to go forward. At the time set for her deposition, Remaining Plaintiff neither 

showed up nor attempted to contact Defendants’ counsel to secure an alternate deposition 

time. See Exhibit E.

On or about July 14, 2020, Counsel for Plaintiffs provided contact details for 

Remaining Plaintiff to the undersigned, who attempted to contact her on July 14 and 15 

via phone. Undersigned counsel was unable to reach her (or to leave a voice mail for her) 

via either call. On July 17, the undersigned sent Remaining Plaintiff a letter asking for a 

response and warning her that Defendants would be requesting dismissal of the lawsuit. 

To date, Remaining Plaintiff has not participated in this lawsuit personally since her 

counsel withdrew or in response to the undersigned counsel’s inquiries.

Under Rule 37, a litigant who fails to appear at her properly scheduled deposition 

is subject to sanction by the Court, including dismissal of the action. Fed. R. Civ. P. Rule 

37(d)(1)(A)(i). This matter has been pending for over four years and Remaining Plaintiff 

was noticed for deposition three times and never appeared. Although the first two 

depositions were withdrawn at the request of Plaintiffs’ counsel, Remaining Plaintiff was 

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certainly as aware as any litigant that appearing at her deposition was a foreseeable 

element of prosecuting her claims. The other three Plaintiffs were scheduled for 

depositions and prepared to attend had they not reached a compromise on their claims.

Although Rule 37(d) sanctions for non-attendance may be avoided, no exception 

applies here. Specifically, Plaintiff did not challenge the scheduling of her deposition or 

appear to object to said deposition. See In re Air Crash at Taipei Taiwan, 2002 U.S. Dist. 

LEXIS 466, 2002 WL 32155477 (C.D. Cal. 2002); and Estrada v. Rowland, 69 F. 3d 

405, 406 (9th Cir. 1995) (dismissal sanction not applicable if Plaintiff appears but does 

not participate in the deposition in good faith). Simply put, Remaining Plaintiff has no 

excuse for not appearing at her properly scheduled deposition. Other co-plaintiffs were 

able to participate in their respective depositions, as were Defendants’ witnesses. 

Furthermore, the deposition as scheduled allowed Remaining Plaintiff to attend 

remotely from any convenient location with an internet connection. She could literally 

have participated in the deposition from her place of residence. Consequently, there is no 

justification to Remaining Plaintiff failure to appear or respond to inquiry by her lawyer 

and undersigned counsel even after being informed dismissal could ensue.

At this particular point, all of the initial litigants have either reached a compromise 

or withdrawn from the case altogether; Remaining Plaintiff is the lone party-plaintiff in 

this action, yet has neither participated in discovery with her legal representative nor 

taken any step to participate in pro se. Under the circumstances, Plaintiff’s failure to 

appear at her duly scheduled deposition and to become personally involved in this matter 

in any meaningful way require the imposition of sanctions pursuant to Rule 37, which 

may include dismissal. See National Hockey League v. Metropolitan Hockey Club, Inc., 

427 U.S. 639, 643 (1976) (finding that sanction of dismissal is within the Court’s 

discretion); Buchanan v. Bowman, 820 F.2d 359 (11th Cir. 1984) (plaintiff’s failure to 

appear at deposition, respond to discovery, or make arrangements for discovery 

warranted dismissal of action under Rule 37). The Ninth Circuit has generally given 

significant deference to the “district court’s discretion to issue sanctions under Rule 

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37(c)(1)” in significant part because that provision in the rules “is a recognized 

broadening of the sanctioning power.” Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 

F.3d 1101, 1106 (9th Cir. 2001). Defendants contend that, had she appeared for her 

deposition and provided her tax and earning records as duly requested, Remaining 

Plaintiff would have been forced to corroborate the testimony already adduced and 

described in this Motion. Should the Court elect not to dismiss the matter for failure to

appear at deposition, the Court has the authority to fashion an appropriate discovery 

sanction under Rule 37(b). At the very least, Remaining Plaintiff must be precluded from 

the ability to adduce any new information and facts presented by Defendants in this 

motion should be deemed uncontroverted. See R&R Sails Inc. v. Insurance Co. of the 

State of Penn., 673 F.3d 1240 (9th Cir. 2012) (recognizing district court’s general 

discretion under Rule 37 to impose discovery sanctions includes the right to bar evidence 

from use in the case).

Because Remaining Plaintiff should not be allowed to provide contradictory 

evidence as sanction for her failure to appear at her deposition and provide requested 

financial and tax information, and because the evidence previously adduced and cited 

herein indisputably demonstrate Remaining Plaintiff was not an employee of Defendants, 

the Court must enter judgment in Defendants’ favor and dismiss all claims.

III. CONCLUSION

For these reasons, performers at Lé Girls are properly considered as licensees, per 

their agreement with the Club, and Plaintiff has not established that the Court should 

proceed in this matter regarding individual claimants as employees.

DATED this 24th day of July, 2020.

BUCHALTER 

By: /s/ Laurent R.G. Badoux

Laurent R.G. Badoux

Attorneys for Defendants

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I hereby certify that I electronically 

transmitted the attached document to the 

Clerk’s Office using the CM/ECF System 

for filing and transmittal of a Notice of 

Electronic Filing to the following 

CM/ECF registrants, and mailed a copy of 

same to the following if non-registrants, 

this 24th day of July, 2020, to:

Jane Roe Dancer 2, in pro se

929 W. Bartlett Avenue

Las Vegas, NV 89106 

/s/ Laurent Badoux

BN 41362493v2

Case 2:15-cv-02563-SMM Document 107 Filed 07/24/20 Page 18 of 18