RULING RE: DEFENDANT'S MOTION TO DISMISS AND PLAINTIFF'S MOTION FOR COLLECTIVE ACTION CERTIFICATION, CLASS ACTION CERTIFICATION AND FACILITATE COLLECTIVE ACTION NOTICE
The plaintiff, Darin Vogel, filed this class action on December10, 2004, against defendant American Kiosk Management, LLC.(referred to herein as "AKM"), asserting violations of the FairLabor Standards Act ("FSLA") 29 U.S.C. § 201, et seq., as well asConnecticut, New Jersey, California, and Maine state wage laws.Specifically, Vogel's action seeks to redress the damagessustained by her and other similarly situated employees of AKM,present and former, because of its alleged violation of theovertime provisions of federal and state labor laws.
Vogel's Complaint asserts six counts against AKM. Count One andTwo of Vogel's Complaint is brought on behalf of her and afederal class, and it alleges the willful, reckless, andnegligent violation by AKM of § 7(a)(1) of the Fair LaborStandards Act (FSLA), 29 U.S.C. 207 (a)(1), prior and subsequentto August 23, 2004. Count Three is brought on behalf of Vogel anda Connecticut class, and it alleges violation by AKM ofConnecticut General Statute § 31-76i, as well as the willful,reckless, and negligent violation by AKM of Connecticut GeneralStatutes §§ 31-71a, et. Seq., 31-60, 31-68, 31-76. Count Four isbrought on behalf of Vogel and a New Jersey class, and it alleges the willful, reckless, and negligent violation by AKM ofNew Jersey Statutes § 34:11-56a et seq. Count Five is brought onbehalf of Vogel and a California class, and it alleges thewillful, reckless, and negligent violation by AKM of CaliforniaLabor Code § 500-558. Finally, Count Six of Vogel's Complaint isbrought on behalf of Vogel and a Maine class, and it alleges thewillful, reckless, and negligent violation by AKM of MaineRevised Statutes Title 26 § 603 and 664.
On February 18, 2005, in response to Vogel's Complaint, AKMfiled a Motion to Dismiss the Complaint due to lack of subjectmatter jurisdiction pursuant to Fed.R.Civ.P. 12 (b)(1).Pursuant to Fed.R.Civ.P. 68, AKM extended Vogel an Offer ofJudgment, which Offer AKM claims renders Vogel's individualclaims in Counts One, Two and Three moot. Accordingly, becauseVogel's individual claims are mooted, AKM argues that hercollective and class action claims under Counts One through Threeare moot as well. Furthermore, AKM argues that Vogel lacksstanding to bring the claims asserted in Counts Four, Five, andSix, as she never worked for AKM in any state other thanConnecticut.
On March 14, 2005, Vogel filed a brief in opposition to AKM'sMotion to Dismiss. Vogel objected to the dismissal of Counts One,Two and Three of the Complaint, but withdrew Counts Four, Five,and Six. Furthermore, on March 21, 2005, Vogel filed a Motion forCollective Action Certification, Class Action Certification, andto Approve and Facilitate Collective Action Notice. In herMotion, Vogel withdrew Count Three with regard to the claims onbehalf of a class pursuant to Fed.R.Civ.P. 23. In reply, AKMargues that Counts Three, Four, Five, and Six of Vogel'sComplaint should be dismissed with prejudice. I. FACTS
A. Vogel's Filing of Initial Complaint and AKM's Motion toDismiss
Pursuant to 29 U.S.C. § 216(b), Vogel brought her action onbehalf of herself and in a representative capacity for othersimilarly situated employees, present and former (who consent inwriting to "opt in" to this case) who, since December 8, 2001,were or are presently employed by AKM in any of its places ofbusiness in the United States, and who were or are deniedovertime pay for hours worked beyond forty hours per week.Furthermore, pursuant to Fed.R.Civ.P. 23, Vogel broughtConnecticut, New Jersey, California, and Maine state law claimson behalf of herself and in a representative capacity for othersimilarly situated employees, present and former, who, sinceDecember 8, 2002, were and are presently employed by AKM in thoseaforementioned states, and who were and are denied overtime payfor hours worked beyond forty hours per week. Vogel's Complaintclaims jurisdiction under the provisions of § 16(b) of the FSLA,29 U.S.C. § 216(b) and 28 U.S.C. § 1331, as well as supplementaljurisdiction pursuant to 28 U.S.C. § 1367. Vogel claims thatduring all times relevant to her Complaint, she was an employeeas defined by § 3(e)(1) of the FSLA, 29 U.S.C. § 203(e)(1), andthat AKM was an employer as defined by § 3(d) of the FLSA,29 U.S.C. § 203(d).
In its Motion to Dismiss, AKM argues that it tendered its Rule68 Offer of Judgment well in excess of the maximum statutoryrelief to which Vogel is entitled in this case, and therefore itrenders her individual claim under the FSLA moot because Vogel nolonger has a personal stake in the outcome of the litigation.Accordingly, AKM argues this court lacks subject matter jurisdiction, and the casemust be dismissed. Furthermore, AKM argues that, because Vogel nolonger has a personal claim under the FLSA, Vogel's collectiveaction under section 216(b) of the FLSA is likewise moot, andtherefore Vogel's collective FLSA action should be dismissed forlack of subject matter jurisdiction as well. Thus, according toAKM, Vogel's federal claims fail to meet this Court'sjurisdictional requirements and must be dismissed.
AKM's Motion to Dismiss also argues that "fatal deficiencies"exist in Vogel's state law claims, and as a result, those claimsmust be dismissed. Specifically, AKM argues that Vogel lacksindividual standing to bring any claims for the violation of NewJersey, California, and Maine wage laws, because she never workedfor AKM in New Jersey, California, or Maine. Thus, withoutindividual/personal standing, AKM claims Vogel cannot representpurported members of those classes, simply because Vogel herselfis not a member and lacks standing. Accordingly, AKM argues thatCounts Four, Five, and Six of Vogel's Complaint, as they relateto Vogel's individual state wage claims, must be dismissed forlack of subject matter jurisdiction. Furthermore, AKM arguesthat, because Vogel lacks standing on the individual state wageclaims, this court must necessarily dismiss her representativeclass action claims brought under New Jersey, California, andMaine.
Finally, AKM's Motion to Dismiss argues that Vogel'sConnecticut State Wage claim must also be dismissed because ittoo has been rendered moot by AKM's Rule 68 Offer of Judgment.Because this court does not have the authority to consider mootissues, AKM argues that Vogel's individual claim underConnecticut law, like her FLSA claims, must be dismissed for lackof subject matter jurisdiction. Furthermore, because the Connecticut class has not been certified, and no motion forcertification had been filed by Vogel prior to AKM's Motion toDismiss, Vogel's Connecticut class action is likewise moot andshould be dismissed for lack of subject matter jurisdiction.
B. Vogel's Response to Motion to Dismiss and Motion forCollective Action Certification, Class Action Certification, andto Approve and Facilitate Collective Action Notice
On March 14, 2005, Vogel filed a Memorandum of Law inOpposition to AKM's Motion to Dismiss. In her Memorandum, Vogelexpressly withdrew Counts Four, Five, and Six of her Complaint,but objected to the dismissal of the remaining, non-withdrawnCounts One, Two and Three. However, in Vogel's Motion forCollective Action Certification, Class Action Certification, andto Approve and Facilitate Collective Action Notice, filed March18, 2005, Vogel elected to withdraw Count Three with regard tothe claims on behalf of a class pursuant to Fed.R.Civ.P. 23.Therefore, it appears that Vogel only objects to the dismissal ofCounts One, Two, and the remaining individual claims underConnecticut law in Count Three.
In her Opposition Memorandum, Vogel argues that AKM's Rule 68Offer did not moot her collective action claims based on section216(b) of the FSLA, and therefore the court still retains subjectmatter jurisdiction for Counts One and Two. Furthermore, althoughshe does not expressly argue the issue in her brief,1 itappears that Vogel objects to AKM's argument that a Rule 68 Offermoots her individual claims under the Connecticut GeneralStatutes. On March 18, 2005, Vogel filed a Motion for Collective ActionCertification, Class Action Certification, and to Approve andFacilitate Collective Action Notice. In her Motion, Vogel movesthis court for an order (1) certifying her action as a collectiveaction with respect to her claims under the FLSA, (2) authorizingher to send a notice and "opt-in" form to all prospective membersof the collective action, and (3) requiring AKM to provide namesand addresses of all collective action and class actionprospective members within ten days of granting the motion.
C. AKM's Reply Brief
AKM's Reply Brief requests that Counts Four, Five, and Six ofVogel's Complaint be dismissed with prejudice because Vogel haswithdrawn those counts, and she never had standing to bring anyindividual or representative claims for the violations alleged inthose counts. Furthermore, AKM requests that this court dismisswith prejudice the class action claims asserted on behalf of theputative Connecticut class, as contained in Count Three ofVogel's Complaint, on account of the fact that in herCertification Memorandum, Vogel withdrew Count Three with regardto the claims filed on behalf of a class pursuant to Rule 23 ofthe Federal Rules of Civil Procedure.
With regard to Vogel's remaining, non-withdrawn claims, AKMargues that Vogel has presented no argument in opposition toAKM's Motion to Dismiss her individual FLSA and Connecticut statewage claims, and that the record supports a determination thatthese claims have been rendered moot by AKM's Rule 68 Offer ofJudgment. AKM argues that even by Vogel's own account, AKM'ssettlement offer affords her well in excess of the maximumstatutory relief to which she is entitled and which she couldever hope to attain at trial. Therefore, AKM has sufficientlyoffered to satisfy Vogel's entire demand, and consequently, Vogel cannot by law claim tohave a personal stake in the present litigation. Furthermore, AKMcontends that Vogel cannot rely as she did on decisions involvingRule 23 class actions to support the contention that her FLSAcollective action has not been rendered moot by AKM's Rule 68Offer of Judgment. For these reasons, AKM argues that this courtlacks subject matter jurisdiction over Vogel's causes of action,and her individual claims under the FLSA and state wage statutemust be dismissed.
A. Impact of Rule 68 on Court's Jurisdiction
Article III, Section 2 of the United States Constitution limitsfederal court jurisdiction to actual cases and controversies.Jefferson v. Abrams, 747 F.2d 94, 96 (2d Cir. 1984). "When theissues presented are no longer `live' or the parties `lack alegally cognizable interest in the outcome,' the case is moot".Id. (quoting Murphy v. Hunt, 455 U.S. 478, 481 (1982) (percuriam)). The controversy must exist at every stage of theproceeding. Id. (citing Roe v. Wade, 410 U.S. 113, 125(1973)).
Fed.R.Civ.P. 68 states, At any time more than 10 days before the trial begins, a party defending against a claim may serve upon the adverse party an offer to allow judgment to be taken against the defending party for the money or the property or to the effect specified in the offer, with costs then accrued. If within 10 days after the service of the offer the adverse party serves written notice that the offer is accepted, either party may then file the offer and notice of acceptance together with proof of service thereof and thereupon the clerk shall enter judgment.The primary purpose of Fed.R.Civ.P. 68 is to promotesettlements and avoid protracted litigation. Rule 68 provides anadditional inducement to settle when there is a strong likelihood "that the plaintiff will obtain a judgmentbut the amount of recovery is uncertain." Delta Airlines, Inc.v. August, 450 U.S. 346, 352 (1981). The offer of judgment rule"prompts both parties to a suit to evaluate the risks and costsof litigation, and to balance them against the likelihood ofsuccess upon trial on the merits." Marek v. Chesny, 473 U.S. 1,5 (1985).
Federal courts differ in opinion on whether the offer ofjudgment rule should apply to class actions, which requirejudicial approval of a settlement. Offers to provide full reliefto the representative plaintiff who wishes to pursue a classaction must be treated specially under the law, lest defendantsfind an easy way to defeat class relief. 13A Charles Alan Wright,Arthur R. Miller, & Edward H. Cooper, Federal Practice andProcedure, § 3533.2 (2d ed. 1984). Therefore, policy andpracticality considerations render the application of the offerof judgment rule to class actions under Fed.R.Civ.P. 23questionable. Moore's Federal Practice, § 68.03 (MatthewBender 3d ed. 2004); See McDowall v. Cogan, 216 F.R.D. 46,48-49 (E.D.N.Y. 2003) (citing Moore's, literal application ofRule 68 presents named plaintiff with "problematic conundrum" ofrejecting offer, thereby incurring liability for all costs oflitigation, or accepting offer, thereby disregarding fiduciaryduty to represent unnamed class members). Allowing Rule 86judgment offers to apply to class representatives could have theundesirable effect of allowing a defendant to "pick off" arepresentative plaintiff by way of the offer, which wouldundercut the viability of the class action procedure andfrustrate the objectives of this procedural mechanism foraggregating small claims. See Weiss v. Regal Collections,385 F.3d 337, 345 (3d Cir. 2004) (holding that allowing defendants to"pick off" lead representatives of putative classes contravenesone of the primary purposes of class actions, the aggregation of numerous similar,especially small, claims in a single action). Moreover, a ruleallowing plaintiffs to be "picked off" at an early stage in theputative class action may waste judicial resources by"stimulating successive suits by others claiming aggrievement."Id. (quoting National Bank v. Roper, 445 U.S. 326, 339 (1980)).Accordingly, some lower courts have held that the requirement ofcourt approval of a legitimate class action settlement underFed.R.Civ.P. 23 puts class actions outside the scope of Rule 68.See Schaake v. Risk Mgmt. Alternatives, Inc., 203 F.R.D. 108,111 (S.D.N.Y. 2001) ("it has long been recognized that Rule 68Offers of Judgment have no applicability to matters legitimatelybrought as class actions pursuant to Rule 23").
On the other hand, it appears that nothing prevents a defendantfrom attempting to settle a putative class action by making apre-class-certification offer to the named plaintiff under Rule68. Moore's Federal Practice, § 68.03 (Matthew Bender 3d Ed.2004). If the only-named-plaintiff's claim is mooted by an offergiving the plaintiff all relief to which she could legally beentitled, the mooting of the named representative's claim beforethe filing of a motion for class certification may requiredismissal of the case. Ambalu v. Rosenblatt, 194 F.R.D. 451,452-453 (E.D.N.Y. 2000); but cf. Sibersky v. Borah, Goldstein,Altschuler & Schwartz, P.C., 242 F. Supp. 2d 157, 160-161(S.D.N.Y. 2002) (if offer of judgment made before classcertification does not cover all damages claimed by namedplaintiff, plus costs and attorney's fees, offer is notsufficient to render plaintiff's claim moot and does not requiredismissal of class claims).
Regarding collective actions, the prevailing view in the SecondCircuit, and other Circuits, is that actions such as thosepursuant to section 216(b) of the FLSA are not subject to Rule 23 requirements and principles. See Hoffman v.Sbarro, Inc., 982 F. Supp. 249, 263 (S.D.N.Y. 1997). Morespecifically, There is a fundamental, irreconcilable difference between the class action described by Rule 23 and that provided for by FSLA § 16(b). In a Rule 23 proceeding a class action is described; if the action is maintainable as a class action, each person within the description is considered to be a class member and, as such, is bound by judgment, whether favorable or unfavorable, unless he has "opted out" of the suit. Under § 16(b) of FLSA, on the other hand, no person will be bound by or may benefit from judgment unless he has affirmatively "opted into" the class; that is, given his written, filed consent.LaChapelle v. Owens-Illinois, Inc., 513 F.2d 286, 288 (5th Cir.1975). Thus, unlike Rule 23 class actions, plaintiffs in acollective FLSA action must "opt in" in order to be bound by anyjudgment or result. See Scott v. Aetna Servs., Inc.,210 F.R.D. 261, 264 (D. Conn. 2002); see also Lawrence v. Townof Irondequoit, 246 F. Supp. 2d 150, 172 (W.D.N.Y. 2002)(refusing to grant plaintiffs' requests to apply Rule 23's optout mechanism to collective action; noting prospective members ofcollective action must opt in and that court would not "ignoremandates of the FLSA").
Therefore, the Rule 23 policy considerations do not apply tocollective actions, as the named plaintiff in a section 216(b)action under the FLSA has no procedural right to represent otherplaintiffs. Section 216(b) clearly states that "no employee shallbe a party plaintiff to any such action unless he gives hisconsent in writing to become such a party and such consent isfiled in the court in which such action is brought."29 U.S.C. § 216(b). Consequently, even if the section 216(b) plaintiff candemonstrate that there are other plaintiffs "similarly situated"to him, he has no right to represent them absent their consent byan opt-in. See 29 U.S.C. § 216(b); see also Cameron-Grant v. Maxim Healthcare Services, Inc. 347 F.3d 1240, 1249 (11thCir. 2003) (discussing how section 216(b) is "a fundamentallydifferent creature" than the Rule 23 class action, and holdingthat the existence of a collective action under section 216(b)does in fact depend on the active participation of otherplaintiffs).
Therefore, without the inclusion of other active plaintiffs whohave "opted-in" to the suit, the section 216(b) plaintiff simplypresents only her claim on the merits, Cameron,347 F.3d at 1249. Thus, the general application of Rule 68 Offers of Judgmentapplies such that settlement of a plaintiff's claims moots anaction. See Lake Coal Co. v. Roberts & Schaefer Co.,474 U.S. 120, 121 (1985). Furthermore, if the offer of judgmentsufficiently covers all damages claimed by named plaintiff, pluscosts and attorney's fees, it may moot the plaintiff's action,even if the plaintiff/offeree declines to accept the offer. See13A Charles Alan Wright, Arthur R. Miller, & Edward H. Cooper,Federal Practice and Procedure, § 3533.2 (2d Ed. 1984) ("evenwhen one party wishes to persist to judgment, an offer to accordall of the relief demanded may moot the case"); see alsoAbrams v. Interco Inc., 719 F.2d 23, (2d Cir. 1983) (wheredefendant extended an offer of judgment three times the amount ofclaimed damages, and plaintiff rejected offer, court held that anoffer of judgment in an amount far larger than the plaintiffscould possibly obtain at trial was sufficient to requiredismissal after the district court had properly refused to permitthe action to proceed as a class action); Rand v. Monsanto Co.,926 F.2d 596, 598 (7th Cir. 1991) (stating that "[o]nce thedefendant offers to satisfy the plaintiff's entire demand, thereis no dispute over which to litigate . . . and a plaintiff whorefuses to acknowledge this loses outright, under Fed.R.Civ.P.12(b)(1), because he has no remaining stake"). B. Asserted Grounds for Dismissal
AKM argues that Vogel's Complaint should be dismissed in itsentirety pursuant to Rule 12(b)(1). Specifically, AKM requeststhat Counts Four, Five, and Six of Vogel's Complaint be dismissedwith prejudice, because Vogel lacks standing for those counts,and on account of the fact Vogel withdrew those counts in herOpposition Memorandum. AKM also requests that Count Three withregard to the claims on behalf of a class pursuant toFed.R.Civ.P. 23 also be dismissed with prejudice, on account of thefact Vogel withdrew that count in her memorandum in support ofher Motion for Collective Action Certification, etc. As for theremaining, non-withdrawn counts, AKM requests they too bedismissed because AKM's Rule 68 Offer rendered them moot.
Vogel has in fact withdrawn Counts Four, Five, and Six, as wellas her Rule 23 action under Count Three, in the context allegedby AKM. Therefore, Vogel appears to claim only Counts One andTwo, which assert individual and collective actions under theFLSA, and her individual claims under the Connecticut GeneralStatutes in Count Three. Because Vogel no longer asserts anyclass action claims invoking Rule 23, this court, in making itsdetermination whether the Rule 68 Offer moots plaintiff's claims,need not engage in the Rule 23 policy considerations discussedabove. The Rule 23 analysis, as it pertains to offers ofjudgment, does not apply to collective and individual actions.Rather, this court must only determine whether AKM's offer ofjudgment sufficiently covers all damages claimed by Vogel, pluscosts and attorney's fees. If it does, it must then be determinedwhether Vogel possesses any justification for taking the time ofthis court and AKM in the pursuit of her individual claims whichappear to have been satisfied by AKM. In the Affidavit submitted in support of Vogel's Motion forCollective Action Certification, Class Action Certification andto Approve and Facilitate Collective Action Notice on March 18,2005, Vogel claimed: "According to my calculations, during myseveral months of employment with the Defendant, I worked a totalof 24 hours of overtime hours." (Vogel Aff., ¶ 13).2Assuming that Vogel's calculations are accurate, she would beentitled to no more than $272.64 in statutory damages for anyviolation of the FLSA and Connecticut state wage laws, whichprovide for liquidated damages in the form of double damages. Inits December 22, 2004 Offer of Judgment, AKM tendered Vogel$500.00, plus reasonable attorneys' fees and expenses, in fulland final settlement of her federal and state wage claims. Giventhat AKM's offer exceeds Vogel's claim for statutory damages,this court concludes that AKM's offer of judgment sufficientlycovers all damages claimed by Vogel, plus costs and attorney'sfees. For this reason, the court concludes that Vogel'sindividual claims, both under the FLSA and Connecticut GeneralStatutes, are moot. Furthermore, because AKM's offer has mootedVogel's individual claims, her collective action under the FLSAis moot as well. See Cameron-Grant, 347 F.3d at 1249(dismissing collective action under FLSA as moot followingdetermination that plaintiff did not have a viable personal claimunder the FLSA).
C. Vogel's Withdrawal of Claims
Rule 41(a) permits voluntary dismissal an action, meaning thetotality of all component claims asserted against a singledefendant, by 1(i) unilateral notice, (1)(ii) by stipulation, or (2) by court order. See Fed.R.Civ.P.41(a). Pursuant to Rule 41(a)(1)(i), voluntary dismissal byfiling of a dismissal notice prior to defendant's service of ananswer is effective, in the absence of any action by the court.Thorp v. Scarne, 599 F.2d 1169 (2d Cir. 1979). Rule 41(a)(1)(i)specifically requires the "filing" of the notice of dismissal,and it is upon filing that the notice becomes immediatelyeffective. Id. at § 41.33[a]. Dismissal by notice is withoutprejudice to the commencement of another action based on the sameclaim, and leaves matters as if no action were ever filed. Id.at § 41.33[b]. See Fernandez v. Southside Hospital,593 F. Supp. 840, 842 (E.D.N.Y. 1984) (defendants not entitled toattorney's fees when plaintiffs dismissed suit).
However, a plaintiff wishing to eliminate some but not allclaims or issues from the action should amend the complaint underFed.R.Civ.P. 15(a), rather than dismiss under Fed.R.Civ.P.41(a). Moore's Federal Practice § 41.21 (Matthew Bender 3dEd. 2004). In many instances the procedure for, and effect of, anamendment will be the same as a voluntary dismissal under41(a)(1) because of the similarities between the governing rules.Id. For example, both rules may be invoked as of right beforethe service of an answer, or responsive pleading by the opposingparty. Furthermore, both rules require that leave be grantedfreely unless the defendant is prejudiced. Moreover, the SecondCircuit has suggested that the choice of rules is immaterial.See Wakefield v. Northern Telecom, Inc., 769 F.2d 109, 114(2d Cir. 1985) (stating that it is clear that a district courtmay permit withdrawal of a claim under Rule 15, subject to thesame standard of review as a withdrawal under Rule 41(a)).
In her Opposition Memorandum, Vogel gave notice of herwithdrawal of Counts Four, Five, and Six of her Complaint. Furthermore, in hermemorandum in support of her Motion for Collective ActionCertification, Vogel further noticed her withdrawal of CountThree with regard to her claims on behalf of a class pursuant toFed.R.Civ.P. 23. This suffices for the purposes of notice, andit has been made prior to AKM's service of an answer. Therefore,Vogel's notice of voluntary dismissal is permissible and has beenappropriately filed pursuant to Rule 41(a)(1). All other claimshaving been dismissed, her notice of the dismissal of theremaining claims is effective.
For the aforementioned reasons, AKM's Motion to Dismiss CountsOne, Two and part of Count Three is hereby GRANTED. Accordingly,Vogel's Motion for Collective Action Certification, Class ActionCertification, and to Facilitate Collective Action Notice ishereby DENIED as moot. Furthermore, Vogel has appropriately filedher notice of dismissal of Counts Four, Five, Six, and theremaining part of Count Three. Therefore, AKM's Motion to Dismisswith Prejudice the withdrawn Counts Four, Five and Six of Vogel'sComplaint is DENIED. Likewise, AKM's Motion to Dismiss withPrejudice Vogel's withdrawn Count Three, as it relates to theclaims on behalf of a class pursuant to Fed.R.Civ.P. 23, isalso DENIED. Because Vogel's Notice of Dismissal dismisses thetotality of all remaining claims against AKM, the Clerk isdirected to close this case.
1. Rather, Vogel argues that the Connecticut class actionclaims pursuant to FRCP 23 are not mooted by the Rule 68 Offer.Because she subsequently withdrew these very claims from hercomplaint, it is therefore assumed that she only objects to themooting of her individual claims.
2. Vogel was employed by AKM between the dates of April 20,2004, and August 22, 2004. Thus, Vogel worked for AKM forapproximately four months.