1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Monica A. Limón-Wynn (#019174) 

LIMÓN-WYNN LAW, PLLC 

1400 East Southern Avenue, Suite 915 

Tempe, Arizona 85282-8008 

Telephone: (480) 946-0680 

Facsimile: (888) 893-9698 

mlimon-wynn@mlwlawaz.com 

Attorneys for Plaintiffs Robert W. Birks, 

Thomas Colburn, and Aaron Post 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Robert W. Birks, Thomas Colburn, and 

Aaron Post, 

Plaintiffs, 

v. 

GinJoint, LLC, a Delaware limited 

liability company; Joe Nolan and Jane 

Doe Nolan, husband and wife and 

citizens of Pennsylvania; Eric Israel and 

Jane Doe Israel, husband and wife and 

citizens of Texas; Al Carter and Jane Doe 

Carter, husband and wife and citizens of 

Delaware; and Wayne Wilson and Jane 

Doe Wilson, husband and wife and 

citizens of Pennsylvania, 

Defendants. 

No.

COMPLAINT 

(Jury Trial Demanded) 

 This action seeks recovery for violations of the Fair Labor Standards Act 

(“FLSA”), 29 U.S.C. §§ 201, et seq., Arizona’s wage statute, A.R.S. §§ 23-350, et seq., 

and the Employment Agreement that each Plaintiff executed with Defendant GinJoint, 

LLC. Plaintiff Robert Birks and Plaintiff Aaron Post have not been paid any wages for 

sixteen (16) weeks, and Plaintiff Thomas Colburn has not been paid any wages for a 

period of four (4) weeks, which caused and forced Mr. Colburn to resign. 

Case 2:15-cv-02464-DGC Document 1 Filed 12/04/15 Page 1 of 13
-2-

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

 

PARTIES, JURISDICTION AND VENUE 

1. Plaintiff Robert W. Birks (“Birks”) is a citizen of Arizona. Birks is a 

current employee of GinJoint. 

2. Plaintiff Thomas Colburn (“Colburn”) is a citizen of Arizona. Colburn is a 

former employee of GinJoint. 

3. Plaintiff Aaron Post (“Post”) is a citizen of Arizona. Post is a current 

employee of GinJoint. 

4. Defendant GinJoint, LLC (“GinJoint”) is a Delaware limited liability with a 

principal place of business at 26 West Lone Cactus Drive, Suite 100, Phoenix, Maricopa 

County, Arizona 85027. 

5. Defendants Joe Nolan (“Nolan”) and Jane Doe Nolan, are husband and wife, 

who are citizens of Pennsylvania. Nolan is currently the Chief Executive Officer of 

GinJoint, and a member of the GinJoint Board of Managers. 

6. Defendants Eric Israel (“Israel”) and Jane Doe Israel, are husband and wife, 

who are citizens of Texas. Israel is a member of the GinJoint Board of Managers. 

7. Defendants Al Carter (“Carter”) and Jane Doe Carter, are husband and wife, 

who are citizens of Delaware. Carter is a member of the GinJoint Board of Managers. 

8. Defendants Wayne Wilson (“Wilson”) and Jane Doe Wilson, are husband 

and wife, who are citizens of Pennsylvania. Wilson was made a GinJoint Board of 

Managers by Nolan in violation of the GinJoint Operating Agreement. 

9. This Court has subject matter jurisdiction over this action pursuant to 28 

U.S.C. § 1331 because this is a civil action arising under the laws of the United States. 

Specifically, this action is brought pursuant to 29 U.S.C. § 216(b). In addition, this court 

has supplemental jurisdiction over the state law claims pursuant to 28 U.S.C. § 1367(a). 

Case 2:15-cv-02464-DGC Document 1 Filed 12/04/15 Page 2 of 13
-3-

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

10. The Court has personal jurisdiction over Defendant GinJoint because it 

conducts business in this District and its principal place of business is located in Maricopa 

County, Arizona. 

11. The Court has personal jurisdiction over Defendant Joe Nolan because he is 

the Chief Executive Officer of GinJoint, a business having a principal place of business in 

Maricopa County, and because he, by virtue of his own acts and omissions, directly 

caused actions to occur within the State of Arizona that give rise to the claims asserted in 

this Complaint and that caused damage to residents of Arizona. 

12. Venue is proper in this Court pursuant to 28 U.S.C. §§ 1391(a) and (b). 

GENERAL ALLEGATIONS 

13. As defined under 29 U.S.C. § 203, GinJoint is an employer that is engaged 

in commerce in the State of Arizona and other states, and in the production of goods for 

commerce. 

14. Nolan is the Chief Executive Officer of GinJoint and a member of its Board 

of Managers/Director who controls, has responsibility for, and is the final decision maker 

relating to the employment relationship with Birks, Colburn and Post, including the 

payment of wages. 

15. Nolan is an employer as defined in 29 U.S.C. § 203 because he is a “person 

acting directly or indirectly in the interest of an employer” in relation to the employment 

of Birks, Colburn and Post, and due to his exertion of economic and operational control 

over that employment relationship, including in light of the circumstances of the whole 

activity and economic reality relative to the employment relationship. 

16. By virtue of his position, authority, responsibility, control and decisions, 

Nolan is an employer with regard to Birks, Colburn and Post within the meaning of 29 

U.S.C. § 203. 

17. By virtue of his position, authority, responsibility, control, decisions, 

knowledge, acquiescence, agreement, action, inaction and vote, each of Israel, Carter and 

Case 2:15-cv-02464-DGC Document 1 Filed 12/04/15 Page 3 of 13
-4-

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

Wilson is an employer with regard to Birks, Colburn and Post as defined in 29 U.S.C. § 

203, and because each is a “person acting directly or indirectly in the interest of an 

employer” in relation to the employment of Birks, Colburn and Post, at all times relevant 

to the events giving rise to this action, including in light of the circumstances of the whole 

activity and economic reality relative to the employment relationship. 

18. Birks and Post are current employees of GinJoint as the term employee is 

defined under 29 U.S.C. § 203(e). 

19. Colburn is a former employee of GinJoint as the term employees is defined 

under 29 U.S.C. § 203(e), but was an employee at all relevant times. 

20. GinJoint’s customary pay schedule for wages to its employees is payment 

twice a month: on the last Friday on or before the 15th day of the month, and on the last 

day of the month. 

21. As of the time of this filing, Birks had not been paid any wages for sixteen 

(16) weeks even though he is and has been employed a full-time employee working forty 

(40) hours per week. 

22. As of the time of this filing, Post had not been paid any wages for sixteen 

(16) weeks even though he is and has been employed a full-time employee working forty 

(40) hours per week. 

23. As of the time of this filing, Colburn had not been paid any wages for four 

(4) weeks even though he was employed during that time as a full-time employee working 

forty (40) hours per week. 

24. In a letter dated August 3, 2015 that was submitted to Nolan on behalf of 

himself and as Chief Executive Officer of GinJoint, and to each of Israel, Carter and 

Wilson, Plaintiffs Birks, Colburn and Post made demand for immediate payment of all 

unpaid wages then due and owing, which included the pay periods of July 15, 2015 and 

July 30, 2015, as to each of Birks, Colburn, and Post. 

Case 2:15-cv-02464-DGC Document 1 Filed 12/04/15 Page 4 of 13
-5-

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

25. In response, and through counsel, GinJoint, Nolan, Israel, Carter and Wilson 

did not agree to immediately pay the wages and would not agree, promise or commit 

whether or when any wages would be paid to any of the Plaintiffs. 

THE WAGE VIOLATIONS REGARDING ROBERT BIRKS 

26. Since July 8, 2014, Birks has been employed by GinJoint as a full-time 

employee. 

27. Birks was not paid the wages due for the pay period of January 30, 2015 

until February 6, 2015. 

28. Birks was not paid the wages due for the pay period of June 30, 2015 until 

July 10, 2015. 

29. As of the date of this filing, Birks was not and has not been paid any amount 

of the wages due for the pay periods of July 15, 2015, July 30, 2015, September 15, 2015, 

September 30, 2015, October 15, 2015, October 30, 2015, November 13, 2015 and 

November 30, 2015. 

THE WAGE VIOLATIONS REGARDING THOMAS COLBURN 

30. Beginning on July 8, 2014, GinJoint employed Colburn as a full-time 

employee. 

31. Colburn was not paid the wages due for the pay period of January 30, 2015 

until February 6, 2015. 

32. Colburn was not paid the wages due for the pay period of June 30, 2015 

until July 10, 2015. 

33. Colburn was not paid on July 15, 2015 for the wages due for that pay 

period. 

34. Colburn was not paid the wages due for the pay period of July 30, 2015. 

35. Colburn was not paid the wages due for the pay period of August 15, 2015. 

36. On August 20, 2015, Colburn was paid the wages that were due for the pay 

period of July 15, 2015. 

Case 2:15-cv-02464-DGC Document 1 Filed 12/04/15 Page 5 of 13
-6-

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

37. On Sunday, August 17, 2015, due to the GinJoint’s failure to pay wages 

owed to Colburn, Colburn submitted his resignation to GinJoint. 

38. GinJoint’s actions and inactions amount to a constructive discharge of 

Colburn. 

39. On Monday, August 18, 2015, Nolan sent email correspondence to Colburn 

promising that if Colburn elected to resign immediately, Colburn would “promptly be 

paid [his] accrued salary.” 

40. As of the date of this filing, Colburn was not and has not been paid the 

wages due for the pay periods of July 30, 2015 and August 15, 2015. 

THE WAGE VIOLATIONS REGARDING AARON POST 

41. Since July 8, 2014, Post has been employment by GinJoint as a full-time 

employee. 

42. Post was not paid the wages due for the pay period of January 30, 2015 until 

February 6, 2015. 

43. Post was not paid the wages due for the pay period of June 30, 2015 until 

July 10, 2015. 

44. As of the date of this filing, Post was not and has not been paid any amount 

of the wages due for the pay periods of July 15, 2015, July 30, 2015, September 15, 2015, 

September 30, 2015, October 15, 2015, October 30, 2015, November 13, 2015 and 

November 30, 2015. 

COUNT I 

(Violation of the FLSA - 29 U.S.C. § 201, et seq.) 

45. Plaintiffs incorporate the preceding allegations of this Complaint as if fully 

set forth herein. 

46. Birks and Post have worked full-time since July 2015 and have not received 

any pay for eight pay periods encompassing a span of sixteen (16) weeks for which no 

wages were paid. 

47. Colburn worked full-time for four weeks for which no wages were paid. 

Case 2:15-cv-02464-DGC Document 1 Filed 12/04/15 Page 6 of 13
-7-

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

48. Birks, Post and Colburn have been employed for work weeks longer than 40 

hours per week for which no compensation was received 

49. The failure of Defendants to pay any wages each to Birks and Post for 

sixteen (16) weeks violates 29 U.S.C. § 206. 

50. The failure of Defendants to pay any wages to Colburn for four (4) weeks 

violates 29 U.S.C. § 206. 

51. Defendants are liable for the harm suffered by Birks, Colburn, and Post 

due to Defendants’ repeated and willful violations of the FLSA, for which Defendants are 

jointly and severally liable, including for payment of the lost wages, liquidated damages, 

penalties, sanctions, attorneys’ fees, costs, fines and other compensation as permitted 

under 29 U.S.C. § 216. 

COUNT II 

(Violation of Arizona’s Wage Statute – A.R.S. §§ 23-350, et seq.) 

52. Plaintiffs incorporate the preceding allegations of this Complaint as if fully 

set forth herein. 

53. Defendant GinJoint failed and refused to pay the agreed-upon wages owed 

to Birks, Colburn and Post. 

54. Defendant Nolan, for the purpose of benefiting himself and other wrongful 

purposes, caused GinJoint to fail to pay the wages owed to each of Birks, Colburn, and 

Post. 

55. Defendants GinJoint and Nolan are liable under A.R.S. §§ 23-350 et seq., 

for the failure to pay the wages owed to each of Birks, Colburn, including for treble 

damages and other sanctions, including attorneys’ fees. 

56. Defendants have willfully and for improper purpose failed to pay the wages 

owed to Birks, Colburn and Post for which Defendants are jointly and severally liable. 

Case 2:15-cv-02464-DGC Document 1 Filed 12/04/15 Page 7 of 13
-8-

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

COUNT III 

(Breach of Employment Agreements) 

57. Plaintiffs incorporate the preceding allegations of this Complaint as if fully 

set forth herein. 

58. On or about July 8, 2014, Birks entered into an Employment Agreement 

with GinJoint under which GinJoint agreed to pay him a base salary of $100,000 per year 

(the “Birks Employment Agreement”). 

59. Under the Birks Employment Agreement, GinJoint was obligated to pay 

Birks his base salary in equal installments in accordance with GinJoint’s customary pay 

schedule, subject to applicable withholdings. 

60. On or about July 8, 2014, Colburn entered into an Employment Agreement 

with GinJoint under which GinJoint agreed to pay him a base salary of $100,000 per year 

(the “Colburn Employment Agreement”). 

61. Under the Colburn Employment Agreement, GinJoint was obligated to pay 

Colburn his base salary in equal installments in accordance with GinJoint’s customary pay 

schedule, subject to applicable withholdings. 

62. On or about July 8, 2014, Post entered into an Employment Agreement with 

GinJoint under which GinJoint agreed to pay him a base salary of $100,000 per year (the 

“Post Employment Agreement”). 

63. Under the Post Employment Agreement, GinJoint was obligated to pay Post 

his base salary in equal installments in accordance with GinJoint’s customary pay 

schedule, subject to applicable withholdings. 

64. The employment relationship is a contractual relationship recognized under 

the common law that exists between an employer and employee. 

65. Between July 8, 2014 and August 17, 2014, a common law employment 

relationship existed between Colburn and GinJoint. 

Case 2:15-cv-02464-DGC Document 1 Filed 12/04/15 Page 8 of 13
-9-

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

66. A common law employment contractual relationship exists between Birks 

and GinJoint since July 8, 2014. 

67. A common law employment contractual relationship exists between Post 

and GinJoint since July 8, 2014. 

68. The foregoing described acts of GinJoint, including the failure to pay wages 

owed to Birks, Colburn, and Post, the failure to pay wages when due in accordance with 

GinJoint’s customary pay schedule, and the failure to uphold its promises, duties and 

obligations to Birks, Colburn, and Post, violate each of the Birks Employment Agreement, 

the Colburn Employment Agreement, and the Post Employment Agreement. 

69. The foregoing described acts of GinJoint, including the failure to pay wages 

owed to Birks, Colburn, and Post, the failure to pay wages when due in accordance with 

GinJoint’s customary pay schedule, and the failure to uphold its promises, duties and 

obligations to Birks, Colburn, and Post, violate each of the common law employment 

contractual relationships that GinJoint had with Colburn and currently has with Birks and 

Post. 

70. GinJoint failed to cure its repeated and material breaches of each of the 

Birks Employment Agreement, the Colburn Employment Agreement, and the Post 

Employment Agreement. 

71. GinJoint failed to cure its repeated and material breaches of each of the 

common law employment contractual relationship GinJoint had with Colburn, and 

currently has with Birks and Post. 

72. As a result of GinJoint’s failure to fulfill the promises, duties, and 

obligations owed to Birks pursuant to the Birks Employment Agreement and the Birks 

common law employment contractual relationship, GinJoint has caused Birks to suffer 

harm for with GinJoint is liable. 

73. As of the date of this filing, the total amount of unpaid wages due to Birks 

pursuant to his contractual relationship with GinJoint is the gross amount of $33,333.36, 

less applicable withholdings. 

Case 2:15-cv-02464-DGC Document 1 Filed 12/04/15 Page 9 of 13
- 10 -

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

74. As a result of GinJoint’s failure to fulfill the promises, duties, and 

obligations owed to Colburn pursuant to the Colburn Employment Agreement and the 

Colburn common law employment contractual relationship, GinJoint has caused Colburn 

to suffer harm for with GinJoint is liable. 

75. As of the date of this filing, the total amount of unpaid wages due to 

Colburn pursuant to his contractual relationship with GinJoint is the gross amount of 

$8,333.33, less applicable withholdings. 

76. As a result of GinJoint’s failure to fulfill the promises, duties, and 

obligations owed to Post pursuant to the Post Employment Agreement and the Post 

common law employment contractual relationship, GinJoint has caused Post to suffer 

harm for with GinJoint is liable. 

77. As of the date of this filing, the total amount of unpaid wages due to Post 

pursuant to his contractual relationship with GinJoint is the gross amount of $33,333.36, 

less applicable withholdings. 

COUNT IV 

(Breach of the Implied Covenant of Good Faith and Fair Dealing 

against Defendant GinJoint, LLC) 

78. Plaintiffs incorporate the preceding allegations of this Complaint as if fully 

set forth herein. 

79. Each of the Birks Employment Agreement, the Colburn Employment 

Agreement, and the Post Employment Agreement contain an implied-in-law covenant of 

good faith and fair dealing that imposed upon GinJoint a duty to act in good faith and to 

deal fairly at all times with Birks, Colburn and Post, and to refrain from undertaking 

action designed to deprive Birks, Colburn and Post of the benefits of his respective 

bargain with GinJoint. 

80. The employment relationship is a contractual relationship recognized under 

the common law that exists between an employer and employee. 

Case 2:15-cv-02464-DGC Document 1 Filed 12/04/15 Page 10 of 13
- 11 -

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

81. Between July 8, 2014 and August 17, 2014, a common law employment 

relationship existed between Colburn and GinJoint. 

82. A common law employment contractual relationship exists between Birks 

and GinJoint since July 8, 2014. 

83. A common law employment contractual relationship exists between Post 

and GinJoint since July 8, 2014. 

84. The conduct of GinJoint described herein, including ongoing and continued 

deprivation and withholding of wages, the delay of payment of wages, the partial payment 

of wages, and the attempts to coerce and badger each of Birks, Colburn and Post to forego 

the amount of wages GinJoint agreed to pay him, violate the implied-in-law covenant of 

good faith and fair dealing that exists in the Birks Employment Agreement, the Colburn 

Employment Agreement, and the Post Employment Agreement. 

85. The conduct of GinJoint described herein, including ongoing and continued 

deprivation and withholding of wages, the delay of payment of wages, the partial payment 

of wages, and the attempts to coerce and badger each of Birks, Colburn and Post to forego 

the amount of wages GinJoint agreed to pay him, violate the implied-in-law covenant of 

good faith and fair dealing that exists in the common law employment contractual 

relationship that exists between Birks and GinJoint, that exists between Post and GinJoint, 

and that existed between Colburn and GinJoint until Colburn’s resignation on August 17, 

2014. 

86. As of result of GinJoint’s violation of the implied-in-law covenant of good 

faith and fair dealing, each of Birks, Colburn and Post have suffered harm for which 

GinJoint is liable. 

COUNT V 

(Intentional Infliction of Emotional Distress) 

87. Plaintiffs incorporate the preceding allegations of this Complaint as if fully 

set forth herein. 

Case 2:15-cv-02464-DGC Document 1 Filed 12/04/15 Page 11 of 13
- 12 -

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

88. By intentionally refusing and depriving Post of any wages for months and 

using the deprivation of wages in an effort to coerce and extort Post to agree to his 

unreasonable and malicious demands, Nolan knew that Post would be susceptible to the 

emotional distress caused by his conduct. 

89. Nolan abused his position to exert undue and extreme pressure and to obtain 

an extortionate advantage over Post. 

90. Nolan’s conduct is and continues to be extreme and outrageous. 

91. Nolan’s conduct is conduct that an average member of the community 

would regard as atrocious and beyond all possible bounds of decency. 

92. Nolan either intended to cause emotional distress or recklessly disregarded 

the near certainty that such distress would result from his conduct. 

93. As a result of Nolan’s conduct, Post has suffered and sustained severe 

emotional distress and injury in an amount to be proven at trial. 

94. Post is entitled to an award of punitive damages in an amount sufficient to 

deter such conduct. 

PRAYER FOR RELIEF 

WHEREFORE, Plaintiff Robert W. Birks, Thomas Colburn and Aaron Post pray 

for judgment in their favor and judgment in their favor and against Defendant GinJoint, 

LLC, Defendants Joe Nolan and Jane Doe Nolan, Defendants Eric Israel and Jane Doe 

Israel, Defendants Al Carter and Jane Doe Carter, and Defendants Wayne Wilson and 

Jane Doe Wilson as follows: 

A. For an award of compensatory damages for all unpaid wages owed, plus 

treble damages including under A.R.S. § 23-355, pre-judgment interest at the highest legal 

rate on all amounts, and post-judgment interest at the highest rate on all amounts until 

paid in full; 

B. For an award of damages in favor of Post for the pain, discomfort, suffering, 

anxiety already experienced, and reasonably probable to be experienced in the future as a 

Case 2:15-cv-02464-DGC Document 1 Filed 12/04/15 Page 12 of 13
- 13 -

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

result of Defendants’ fault 

C. For an award of damages in favor of Post for reasonable expenses of 

necessary medical care, treatment and services rendered and reasonably probable to be 

incurred in the future; the harm to Post’s reputation, and the physical injury to Post; 

D. For an award of the reasonable attorneys’ fees, expenses and costs pursuant 

to 29 U.S.C. § 216(b); 

E. For an award of punitive damages in an amount to be determined at trial; 

F. For such other and further relief in favor of Plaintiffs as this Court may 

deem appropriate, proper and just. 

DATED this 4th day of December, 2015. 

LIMÓN-WYNN LAW, PLLC 

By: /s/ Monica A. Limón-Wynn 

Monica A. Limón-Wynn 

Tempe City Center 

1400 East Southern Avenue, Suite 915 

Tempe, Arizona 85282-8008 

Attorneys for Plaintiffs 

Case 2:15-cv-02464-DGC Document 1 Filed 12/04/15 Page 13 of 13