WILLIS v. DRILTEK INC (2019)

United States Court of Appeals, Ninth Circuit.

Kenneth WILLIS, Plaintiff-Appellant, v. DRILTEK, INC., Defendant-Appellee.
Kenneth Willis, Plaintiff-Appellant, v. Enterprise Drilling Fluids, Inc.; DrilTek, Inc.; James Joslyn, Defendants-Appellees.

No. 17-17397, No. 17-17472

Decided: April 10, 2019

Before: SCHROEDER and RAWLINSON, Circuit Judges, and LASNIK,* District Judge.

Lonnie C. Blanchard, III, Esquire, Attorney, Lonnie C. Blanchard III, Los Angeles, CA, Peter R. Dion-Kindem, Peter R. Dion-Kindem, P.C., Woodland Hills, CA, Jeff Holmes, Jeff Holmes, Esq., Los Angeles, CA, for Plaintiff-Appellant Charles F. Barker, Esquire, Senior Counsel, Derek Havel, Esquire, Attorney, Matthew A. Tobias, Esquire, Sheppard Mullin Richter & Hampton LLP, Los Angeles, CA, John Richard Szewczyk, Esquire, Grover H. Waldon, Attorney, Clifford and Brown, Bakersfield, CA, for Defendant-Appellee

MEMORANDUM **

Plaintiff Kenneth Willis appeals the district court's order granting summary judgment in favor of DrilTek, Inc. in Willis’ putative class action claiming violations of state and federal wage and hour laws. We have jurisdiction of the appeal. The order granting summary judgment was appealable because there was nothing left for the district court to do. See Klestadt & Winters, LLP v. Cangelosi, 672 F.3d 809, 813 (9th Cir. 2012); see also Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949).

Willis is seeking to recover overtime pay from DrilTek on the theory that DrilTek was a joint employer with Enterprise, the company that hired him. The district court correctly rejected that theory. At most, DrilTek criticized work done by one or two of Enterprise's engineers. Because DrilTek was the subcontractor in charge of overseeing operations, it scheduled work to be done by Enterprise's employees. DrilTek did not hire, fire, or control the wages and hours and working conditions of Willis and other engineers employed by Enterprise. DrilTek therefore did not exercise the requisite degree of control required by federal or California law to make DrilTek an employer. See Moreau v. Air France, 356 F.3d 942, 946-47 (9th Cir. 2004); Martinez v. Combs, 49 Cal.4th 35, 64, 109 Cal.Rptr.3d 514, 231 P.3d 259 (2010).

AFFIRMED.

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