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Michael Zoldan; AZ Bar No. 028128

ZOLDAN LAW GROUP, PLLC

14500 N. Northsight Blvd., Suite 213

Scottsdale, Arizona 85260

Tel & Fax: 480.442.3410

mzoldan@zoldangroup.com

Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

Deoncea O’Neil and Ryan White, 

Individually, and on Behalf of All Others 

Similarly Situated,

 Plaintiffs, 

vs.

America’s Best Tire, LLC, an Arizona 

limited liability company; Camelback 

Automotive Repair, LLC, an Arizona 

limited liability company; American’s 

Best Tire Grand, LLC, an Arizona limited 

liability company; America’s Best Tire 

Glendale, LLC, an Arizona limited 

liability company; America’s Best Tire 

203, LLC, an Arizona limited liability 

company; America’s Best Tire 101, LLC, an Arizona limited liability company; 

America’s Best Employment Services, 

LLC, an Arizona limited liability 

company; America’s Best Wholesale 

Tire, LLC, an Arizona limited liability 

company; America’s Best Tire Mesa, 

LLC, an Arizona limited liability 

company; America’s Best Transportation 

Services, LLC, an Arizona limited liability 

company; America’s Best Tire Peoria, 

LLC, an Arizona limited liability 

company; America’s Best Tire Buckeye, 

LLC, an Arizona limited liability 

company; America’s Best Tire Van 

Buren, LLC, an Arizona limited liability 

company; America’s Best Wholesale Tire 

Tucson, LLC, an Arizona limited liability 

company; America’s Best Tire Wholesale 

Tire LV, LLC, an Arizona limited liability 

company; AZ Best Automotive, LLC, an 

No. 2:16-cv-00056-DGC

PLAINTIFFS’ RESPONSE IN 

OPPOSITION TO DEFENDANTS’ 

MOTION FOR SUMMARY 

JUDGMENT

(Assigned to the Honorable David G. 

Campbell)

Case 2:16-cv-00056-DGC Document 26 Filed 04/15/16 Page 1 of 14
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Arizona limited liability company; AZ Best 

Tire 4097, LLC, an Arizona limited 

liability company; Arizona Best Tire 

Services, LLC, an Arizona limited liability 

company; AZ Best Tire 3902, LLC, an 

Arizona limited liability company; AZ Best 

Tire, LLC, an Arizona limited liability 

company; AZ Best Tire 7048, LLC, an 

Arizona limited liability company; AZ Best 

Tire 8334, LLC, an Arizona limited 

liability company; Arizona Best Mobile 

Tire Services, LLC, an Arizona limited 

liability company; AZ Best Tire & Auto 

1355, LLC, an Arizona limited liability 

company; AZ Best Tire 5201, LLC, an 

Arizona limited liability company; Travis 

M. Dees and Jane Doe Dees, husband and 

wife, Arizona residents; Andrew Dees and 

Jane Doe Dees, husband and wife, Arizona 

residents,

 Defendants.

Pursuant to the Federal Rules of Civil Procedure (the “Rules”), Rule 56(d), 

Plaintiffs Deoncea O’Neal and Ryan White, by and through undersigned counsel, hereby 

submit their Response in Opposition to Defendants’ America’s Best Employment 

Services LLC, America’s Best Tire LLC, America’s Best Tire 203 LLC, America’s Best 

Tire Buckeye LLC, America’s Best Tire Glendale LLC, America’s Best Tire Grand LLC, 

America’s Best Tire Mesa LLC, America’s Best Tire Peoria LLC, America’s Best Tire 

Van Buren LLC, America’s Best Transportation Services LLC, America’s Best 

Wholesale Tire LLC, America’s Best Wholesale Tire LV LLC, America’s Best 

Wholesale Tire Tucson LLC, Camelback Automotive Repair LLC, and Travis Dees 

(collectively “Moving Defendants”) Motion for Summary Judgment. 

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This is a lawsuit for unpaid overtime wages under the Fair Labor Standards Act 

(“FLSA”). Moving Defendants’ Motion argues that Plaintiffs were employed only by

America’s Best Tire LLC, and that they have been paid in full. Defendants’ alleged 

payment was, at best, an unaccepted settlement offer–a legal nullity, with no operative 

effect. Such payment cannot therefore moot Plaintiffs’ claims. Furthermore, the extent to 

which Plaintiffs’ employment was limited to America’s Best Tire LLC and whether they 

have been paid in full subsequent to the filing and service of this lawsuit is an issue of 

fact and law that cannot be resolved without discovery. 

Therefore, pursuant to basic principles of contract law and Rule 56(d), the Court 

should deny the Moving Defendants’ premature motion because (1) Plaintiffs did not 

accept the Moving Defendants’ offer to settle this matter and therefore still have a claim, 

and (2) Plaintiffs must be afforded the opportunity to engage in discovery to determine 

exactly which entities and individuals employed them and exactly the amount of damages 

to which Plaintiffs and the Collective Members are entitled. Based on the following 

Memorandum of Points and Authorities, the Declaration of Clifford P. Bendau, II, (see

Exhibit A, attached hereto), the Declarations of Plaintiff Deoncea O’Neal and Ryan 

White filed contemporaneously with their Motion for Conditional Certification (see 

Exhibits B and C, respectively, attached hereto), and Plaintiffs’ controverting statement 

of facts, summary judgment in favor of the Moving Defendants is improper.

/ /

/ /

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I. INTRODUCTION AND FACTUAL BACKGROUND

Plaintiffs’ Complaint alleges that all Defendants violated the FLSA by failing to 

pay them overtime for all time that they spent working for Defendants in excess of 40 

hours in a given workweek. (Dkt. 1). Plaintiffs allege that all Defendants in this matter 

employed Plaintiffs and the Collective Members under the enterprise and joint employer 

doctrines from the inception of their employment with America’s Best Tire1 through the 

termination of their employment. (Dkt. 1 ¶¶ 18-46). Plaintiffs specifically allege that 

Defendants paid Plaintiffs and the Collective Members at their regular, “straight-time” 

rates of pay for all hours they spent working in excess of 40 in a given workweek, rather 

than the FLSA-mandated one and one-half times their regular rates of pay for such time. 

(Dkt. 1 ¶¶ 54-56). The Moving Defendants, in an attempt to moot this lawsuit, do not 

dispute these allegations. (Dkt. 19). Rather, they have essentially admitted their illegal 

conduct and sent checks to Plaintiffs’ counsel in a blatant effort to sweep it under the 

proverbial rug. Id.

2 In essence, the Moving Defendants seek for summary judgment 

against themselves in an effort to avoid redressing the damages they have caused an 

entire class of low-wage-earning employees.

In addition to the overtime damages Defendants expressly acknowledge, however, 

Plaintiffs have further alleged that Defendants suffered or permitted Plaintiffs and the 

Collective Members to work while “off the clock,” (Ex. B ¶¶ 21-22, Ex. C ¶¶ 20-21) and 

 1 For simplicity purposes, all Defendants to this action shall be collectively referred to as either 

“America’s Best Tire” or “Defendants” unless specified otherwise. 

2 Plaintiffs rejected such checks and neither cashed nor deposited them into their bank accounts. 

(Ex. A ¶¶ 12-13)

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that Defendants failed to both (1) accurately tally such “straight time” overtime 

payments, (Ex. B ¶¶ 18-19, Ex. C ¶¶ 17-18), and (2) keep accurate records of such time 

that Plaintiffs and the Collective Members worked. (Dkt. 1 ¶ 83). Defendants’ attempted 

payments do not account for these allegations. (Dkt. 20). 

As outlined below, even assuming that the Moving Defendants had made an offer3

that accounted for all of Plaintiffs’ alleged damages–which they have not–, Plaintiffs did 

not accept such offers from Defendants. (Ex. A ¶¶ 12-13). Therefore, Plaintiffs still have 

an actionable claim pending, and the letter of the law clearly requires a finding that their 

case is not moot.

Furthermore, Discovery in this case is in its infancy. The Moving Defendants filed 

their Motion for Summary Judgment the day before the Scheduling Conference. This 

Court has not yet even issued a Scheduling Order. Plaintiffs must be afforded the 

opportunity to engage in discovery to determine exactly which entities and individuals 

employed them and exactly the amount of damages to which Plaintiffs and the Collective 

Members are entitled.

Because (1) Plaintiffs never accepted any offer tendered by the Moving 

Defendants, (2) Plaintiffs have not have an opportunity to conduct discovery into the 

identities of their employers and their amount of damages, and (3) this Court has not 

supervised and granted approval of any settlement in this matter, the Moving Defendants’ 

Motion must be denied.

 3 The Moving Defendants describe such offers as “payments.” (See, e.g., Dkt. 19 4:9-13).

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II. LEGAL ARGUMENT

A. The Moving Defendants’ alleged payment in full was in reality an 

unaccepted offer to settle, which under Cambell-Ewald v. Gomez has no 

legal effect, the Moving Defendants cannot force Plaintiffs to accept 

their offer by labeling it a “payment,” and Plaintiffs clearly allege that 

they worked more time than that for which the Moving Defendants 

offered to settle.

Plaintiffs rejected the Moving Defendants’ original offer to settle. (Dkt. 20 at p. 

23). They then rejected the Moving Defendants’ offer of judgment. (Dkt. 20 at 17). 

Nevertheless, the Moving Defendants sent checks in what they, in their sole judgment, 

determined to be Plaintiffs’ unpaid overtime damages. Id. Again, Plaintiffs rejected these 

checks. Id. Plaintiffs never cashed them nor deposited them into their bank accounts. 

Plaintiffs merely continued this lawsuit without accepting the Moving Defendants’ 

repeated offers of settlement. Because Plaintiffs’ rejection of the Moving Defendants’ 

offers left the matter as if no offer had been made, the Moving Defendants’ alleged 

“payment” is a legal nullity, and Plaintiffs must be allowed to pursue their claims both 

individually and on behalf of individuals similarly situated.

“[A]n unaccepted settlement offer has no force. Like other unaccepted contract 

offers, it creates no lasting right or obligation.” Campbell-Ewald Co. v. Gomez, 136 S.Ct. 

663, 670 (2016) (adopting the analysis of Justice Kagan’s dissent in Genesis Healthcare 

Corp. v. Symczyk, 569 U.S. 133, S.Ct. 1523 (2013)). “‘When a plaintiff rejects such an 

offer–however good the terms–her interest in the lawsuit remains just what it was before. 

And so too does the court’s ability to grant her relief. An unaccepted settlement offer–

like any unaccepted contract offer–is a legal nullity, with no operative effect...the 

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recipient’s rejection of an offer ‘leaves the matter as if no offer had been made.’’” Id.

(quoting Justice Kagan’s dissent in Genesis Healthcare Corp. v. Symczyk, 569 U.S. 133, 

S.Ct. 1523 (2013)).

In their Motion for Summary Judgment, the Moving Defendants cite repeatedly 

and painstakingly to Genesis Healthcare for the proposition that “Plaintiffs’ claims are 

barred by payment,” (Dkt. 19), because “Plaintiffs have been paid in full for any and all 

amounts that could be due and owing from Moving Defendants, or any of them, pursuant 

to the allegations of the Complaint.” (Dkt. 19, 4:21-23).

The Moving Defendants effort to differentiate their own conduct from the act of 

making a settlement offer falls flat–this is a clear case of an unaccepted or rejected offer, 

as painted in Gomez. The Moving Defendants paint themselves as having unilaterally 

“paid” Plaintiffs without Plaintiffs having actually accepted such amounts in satisfaction 

of their claims. (Dkt. 19, 4:9-13). However, Plaintiffs clearly rejected the offers. (Ex. A 

¶¶ 12-13). There is no “accord and satisfaction.” Had “payment” occurred, it would have 

been concurrently with Plaintiffs having earned such amounts. Rather, here, the Moving 

Defendants cannot place checks in front of Plaintiffs in order to retroactively “comply” 

with the law (subsequently, of course, to having been caught in the act of breaking it) and 

then unilaterally deem Plaintiffs as having been “paid.”

Instead, Justice Kagan’s in-depth analysis in her dissent in Genesis Healthcare, 

which again was adopted by the Supreme Court in Gomez, requires that Plaintiffs’ claim 

continue solely on the basis that they rejected the Moving Defendants’ offers to settle. 

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Take, for example, Justice Kagan’s hypothetical scenario that paints an almost identical 

situation the subject matter at issue here:

Now introduce a settlement offer into the picture: Assume that before the court 

finally decides whether to permit a collective action, the defendant proposes to pay 

Smith the value of her individual claim in exchange for her abandonment of the 

entire litigation. If Smith agrees, of course, all is over; like any plaintiff, she can 

assent to a settlement ending her suit. But assuming Smith does not agree, because 

she wishes to proceed on behalf of other employees, could the offer ever succeed 

in mooting her case? I have already shown that it cannot do so in the 

circumstances here, where the defendant makes an offer, the plaintiff declines it, 

and nothing else occurs: On those facts, Smith’s claim is as it ever was, and the 

lawsuit continues onward. But suppose the defendant additionally requests that the 

court enter judgment in Smith’s favor–though over her objection–for the amount 

offered to satisfy her individual claim. Could a court approve that motion and then 

declare the case over on the ground that Smith has no further stake in it? That 

course would be less preposterous than what the court did here; at least Smith, 

unlink Symczyk, would get some money. But it would be impermissible as well...

No more in a collective action brought under the FLSA than in any other class 

action may a court, prior to certification, eliminate the entire suit by acceding to a 

defendant’s proposal to make only the named plaintiff whole. That course would 

short-circuit a collective action before it could begin, and thereby frustrate 

Congress’s decision to give FLSA plaintiffs “the opportunity to proceed 

collectively”...It is our Plaintiff Smith’s choice, and not the defendant’s or the 

court’s, whether satisfaction of her individual claim, without redress of her viable 

classwide allegations, is sufficient to bring the lawsuit to an end.

Genesis Healthcare Corp. v. Symczyk, 133 S.Ct. at 153536 (Kagan, J., dissenting) 

(internal citations omitted). 

The facts are simple: the Moving Defendants made multiple settlement offers to 

Plaintiffs, and Plaintiffs rejected those offers. The Moving Defendants never “paid” 

Plaintiffs. Because Plaintiffs rejected the Moving Defendants’ settlement offers, 

Plaintiffs’ claims continue to possess a legally cognizable interest, and Gomez requires 

that this Court allow this matter to continue.

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Regardless, even assuming the law required the opposite result–that an offer that 

accounted for all of Plaintiffs’ alleged damages did moot Plaintiffs’ claims–Plaintiffs

clearly allege damages in addition to those offered by Defendants (i.e., required “offclock” work in and shoddy recordkeeping). (Ex. B ¶¶ 18-19, 21-22, Ex. C ¶¶ 17-18, 20-

21), (Dkt. 1 ¶ 83). Therefore, even under the Moving Defendants’ theory, there still 

remain additional damages for which the Moving Defendants did not account in their 

offers, and Plaintiffs’ claims must continue.

B. Pursuant to Rule 56(d), this Court should allow Plaintiffs additional 

time to take discovery to determine the identities of their employers

and the amounts to which Plaintiffs and the Collective Members are 

properly entitled because Plaintiffs clearly allege that they worked in 

excess of the amount of time for which the Moving Defendants offered 

to settle.

If facts exist that are unavailable to the party opposing the motion for summary 

judgment, and the nonmovant “shows by affidavit or declaration that, for specified 

reasons, it cannot present facts essential to justify its opposition, the court may: (1) defer 

considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to 

take discovery; or (3) issue any other appropriate order.” Fed. R. Civ. P. 56(d); VISA Int’l 

Serv. Ass’n v. Bankcard Holders of Am., 784 F.2d 1472, 1475 (9th Cir. 1986).

To prevail under this rule, “[t]he requesting party must show: (1) it has set forth in 

affidavit form the specific facts it hopes to elicit from further discovery; (2) the facts 

sought exist; and (3) the sought-after facts are essential to oppose summary judgment. 

Family Home Finance Center, Inc. v. Federal Home Loan Mortg. Corp., 525 F.3d 822, 

827 (9th Cir. 2008). When a summary judgment motion is filed before a party has had 

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any realistic opportunity to pursue discovery relating to its theory of the case, district 

courts should grant any Rule 56(d) motion fairly freely. Burlington N. Santa Fe R. Co. v. 

Assiniboine & Sioux Tribes of Fort Rock Reservation, 323 F.3d 767, 773 (9th Cir. 2003), 

and a district court must continue a summary judgment motion upon a good faith 

showing by affidavit that the continuance is needed to obtain facts essential to preclude 

summary judgment. 4 Spear v. United States, CIV. 11-1742-PHX0PGR, 2012 WL 

2029747 (D. Ariz. June 6, 2012); California v. Campbell, 138 F.3d 772, 779 (9th Cir. 

1998).

The Moving Defendants’ Motion relies heavily upon Genesis Healthcare Corp. v. 

Symczyk, 569 U.S. 133, S.Ct. 1523 (2013) for the proposition that “Plaintiffs’ claims are 

barred by payment” on the grounds that under Genesis Healthcare, “[t]o invoke federalcourt jurisdiction, a plaintiff must demonstrate that he possesses a legally cognizable 

interest, or ‘personal stake,’ in the outcome of the action.” (Dkt. 19, 4:19-20). The 

Moving Defendants’ effort to misconstrue a settlement offer into “payment” aside, they 

rely most heavily upon a declaration that purports to establish the authenticity of 

Microsoft Excel spreadsheets in ascertaining the exact number of hours of overtime that 

Plaintiffs worked. (Dkt. 20). This method is ludicrous. Even assuming that such time 

cards exist, Plaintiffs are entitled to discovery on this issue because they have clearly 

 4 (“Although Rule 56([d]) facially gives judges the discretion to disallow discovery when 

the non-moving party cannot yet submit evidence supporting its opposition, the Supreme Court 

has restated the rule as requiring, rather than merely permitting, discovery ‘where the nonmoving party has not had the opportunity to discover information that is essential to its 

opposition.’”) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 n. 5, 106 S.Ct. 2505, 91 

L.Ed.2d 202 (1986)). Spear v. United States, CIV. 11-1742-PHX-PGR, 2012 WL 2029747 (D. 

Ariz. June 6, 2012).

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alleged additional damages. (Ex. B ¶¶ 18-19, 21-22, Ex. C ¶¶ 17-18, 20-21), (Dkt. 1 ¶ 

83).

Furthermore, here, the Moving Defendants attempt to flip the pleading standard on 

its head by requesting that the Court ignore the truth of Plaintiffs’ well-pled allegations 

and take the “facts” in their motion as the truth. Such a maneuver is exactly what Rule 

56(d) is designed to prevent: to avoid manipulation of the pleading standard by providing 

parties with a full opportunity to conduct discovery. Because Plaintiffs have not had that 

opportunity, the Moving Defendants’ Motion should be denied. 

Given the hasty filing of the Moving Defendants’ Motion, the Plaintiffs are unable 

to oppose the Motion on the facts because the Parties have not engaged in any discovery 

whatsoever. (Ex. A ¶¶ 5-7). For example, Plaintiffs have not had an opportunity to 

conduct discovery concerning, for example:

a. Whether and to what extent Defendants required and/or allowed Plaintiffs 

and the Collective Members to work while “off the clock”;

b. The actual amounts of money contained in the cash payments paid to 

Plaintiffs and the Collective Members for time worked in excess of 40 

hours in a given workweek, as alleged in the Complaint;

c. The adequacy and accuracy of the employment, time, and compensation 

records that the Defendants kept in regard to Plaintiffs’ and the Collective 

Members’ employment with America’s Best Tire.

(Ex. A ¶ 7). Because Plaintiffs have not had an opportunity to conduct discovery into the 

above topics, they have not had an opportunity to present evidence to demonstrate that 

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their damages exceed those offered by the Moving Defendants. (Ex. A ¶ 9). This 

information is critical to opposing the instant Motion.

In order to seek the information they require to oppose the Moving Defendants’ 

Motion, Plaintiffs will serve written discovery requests and intend to depose the 

managing members and owners of America’s Best Tire. At this early stage in the 

litigation process, Plaintiff has not had the opportunity to conduct discovery into these 

matters but intend to do so diligently according to the Rule 16 Scheduling Order, once it 

has been issued by the Court.

Although Mr. Dees’ Declaration generally claims that the accompanying 

spreadsheet he provides accounts for all overtime hours that Plaintiffs worked for the 

Moving Defendants, Plaintiffs must be afforded an opportunity to conduct discovery to 

dispute (or confirm) the veracity of Mr. Dees’ Declaration including the fact upon which 

he relied in making the Declaration. Plaintiffs have yet to serve any written discovery 

related to the unpaid wages that the Moving Defendants owe them. (Ex. A ¶ 5). Plaintiffs 

have not had the opportunity to depose any corporate representatives of the Moving 

Defendants. (Ex. A ¶ 5). Because Plaintiffs have not had sufficient opportunity to 

conduct discovery, the Moving Defendants’ Motion is premature and must be denied.

/ /

/ /

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C. Defendants’ attempt to moot this claim controverts the Congress’ clear 

intent in drafting the FLSA, and, even if Plaintiffs had accepted 

Defendants’ offer, because this Court has not given FLSA-mandated 

approval of the Moving Defendants’ alleged payment in full, such a 

settlement would be unenforceable under the FLSA.

The Moving Defendants cannot claim that Plaintiffs have accepted their offer and 

that this case is moot because the Court has not given FLSA-mandated approval after of 

any settlement in this matter after scrutinizing it for fairness. This is because no 

settlement of this matter exists. Plaintiffs’ claims continue because, in the context of a 

private action for back wages, they cannot waive their FLSA rights without court 

approval.

“FLSA rights cannot be abridged by contract or otherwise waived because this 

would nullify the purposes of the statute.” Barrentine v. Arkansas-Best Freight Sys., Inc., 

450 U.S. 728, 740 (1981). Under Lynn’s Food Stores, Inc. v. United States, there are only 

two ways in which back wage claims under the FLSA can be settled or compromised by 

employees: (1) under 29 U.S.C. § 216(c), the Secretary of Labor can supervise payment 

to employees of unpaid wages owing to them, or (2) under 29 U.S.C. § 216(b), when an 

employee brings a private action for back wages and presents a proposed settlement to 

the district court, that district court “may enter a stipulated judgment after scrutinizing the 

settlement for fairness.” Lynn’s Food Stores, Inc. v. United States, 679 F.2d 1350, 1352-

53 (11th Cir. 1982). 

Here, there has been no settlement agreement. Plaintiffs never agreed to accept the 

money that the Moving Defendants sent in desperation to Plaintiffs’ counsel upon 

rejection of their previous offers. As shown above, even if Plaintiffs had accepted such 

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checks, such a hypothetical “settlement” would not be valid absent approval of this 

Court. Therefore, the Court must allow Plaintiffs’ claims to continue.

RESPECTFULLY SUBMITTED this 15th Day of April 2016.

THE BENDAU LAW FIRM, PLLC

By: /s/ Clifford P. Bendau, II 

Clifford P. Bendau, II

Attorney for Plaintiffs

Certificate of Service

I certify that on this 15th Day of April 2016 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:

Karen L. Karr

CLARK HILL PLC

14850 N. Scottsdale Rd., Ste. 500

Scottsdale, AZ 85254

Attorneys for Travis Dees Defendants

Brad A. Denton

DENTON PETERSON, P.C.

1930 E. Arboleda Rd., Ste. 200

Mesa, AZ 85213

Attorneys for Andrew Dees Defendants

/s/Clifford P. Bendau II

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