Pickering v. Lorillard Tobacco Company, Inc.
MEMORANDUM OPINION AND ORDER that (1) Mr. Pickering's Motion for Conditional Class Certification and for Judicial Notice 36 is DENIED, (2) Mr. Pickering's Motion to Compel 36 -1 is DENIED, and (3) Lorillard's Motion to Strike Plaint iff's Expert Affidavit and Exclude Testimony from Plaintiff's Expert 60 is GRANTED, but Lorillard's request for costs, expenses and attorney's fees incurred in connection with filing the motion is DENIED. Signed by Chief Judge William Keith Watkins on 1/30/2012. (Attachments: # 1 Civil Appeals Checklist)(jg, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
JAMES PICKERING, JR.,
) CASE NO. 2:10-CV-633-WKW
MEMORANDUM OPINION AND ORDER
Plaintiff James Pickering Jr., a retired sales representative for Defendant
Lorillard Tobacco Co., Inc., brings this action under the Fair Labor Standards Act
(“FLSA”), 29 U.S.C. §§ 201-219, on behalf of himself and all others similarly
situated, alleging that his former employer violated the FLSA’s mandatory overtime
provisions. He moves the court to certify this case conditionally as a collective action
under the FLSA and seeks nationwide notice. Alternatively, Mr. Pickering moves to
compel discovery. Lorillard opposes the motions and also moves the court to exclude
the affidavit from Mr. Pickering’s expert, Lyndell L. Erwin, for failure of Mr.
Pickering to designate his expert within the time prescribed by the court’s scheduling
Before the court are (1) Mr. Pickering’s Motion for Conditional Class
Certification and for Judicial Notice (Doc. # 36), (2) Mr. Pickering’s Motion to
Compel (Doc. # 36-1), and (3) Lorillard’s Motion to Strike Plaintiff’s Expert
Affidavit and Exclude Testimony from Plaintiff’s Expert (Doc. # 60). The motions
have been fully briefed. After careful consideration of the arguments of counsel, the
relevant law and the record as a whole, the court finds that Mr. Pickering’s motions
are due to be denied, and that Lorillard’s motion is due to be granted.
II. JURISDICTION AND VENUE
Subject matter jurisdiction is proper pursuant to 28 U.S.C. § 1331. Personal
jurisdiction and venue are not contested, and there are adequate allegations of both.
III. FACTUAL AND PROCEDURAL BACKGROUND
Lorillard is the third largest cigarette manufacturer in the United States and
employs 770 full-time sales representatives nationwide. (Sparrow’s Decl. ¶ 3 (Doc.
# 45).) Sales representatives are part of Lorillard’s field sales operations, which are
divided into 4 geographic areas, which in turn comprise 20 regions, 122 divisions and
787 territories. (Gershengorn’s Decl. 13–14; Sparrow’s Decl. ¶ 4.) Each area is
supervised by an area vice president; each region is supervised by a regional sales
manager; and each division is supervised by a division manager. (Sparrow’s Decl.
¶ 4.) Lorillard classifies its sales representatives as exempt from the FLSA-mandated
overtime compensation provisions.
Mr. Pickering, the sole plaintiff, worked for Lorillard as a full-time, salaried
sales representative from June 9, 1979, until his retirement nearly three decades later
on December 31, 2008. (Pl.’s Dep. 10–11 (Ex. 7 to Doc. # 44).) His division
manager was Hugh Gordon Kirkham, and his regional sales manager was Glenn
Seger. (Pl.’s Dep. 12, 21; Kirkham’s Decl. ¶ 1 (Ex. C to Doc. # 36).)
Evidence Pertaining to Mr. Pickering’s Job Duties as a Lorillard Sales
Mr. Pickering worked in the Montgomery/Prattville division (Division # 518),
and his territory consisted of eight or nine counties, primarily rural, in west central
Alabama. (Pl.’s Dep. 11–13; Gershengorn’s Decl., Ex. 1.) He traveled daily to retail
stores that carried Lorillard products, “work[ing] primarily as an account
representative” to “promot[e] [Lorillard’s] company products.” (Pl.’s Decl. ¶ 2.) He
spent “most of [his] time . . . doing promotional type work,” such as “setting up
displays, posters, and points of sales” to inform customers about a retail store’s brand
availability. (Pl.’s Decl. ¶ 2.)
Mr. Pickering’s sales activities were limited because retailers generally
purchased Lorillard’s products through wholesalers. He carried a small amount of
products in his vehicle, however, and provided them to Lorillard’s clients when
necessary “to maintain freshness” or to cover a retailer’s inventory shortage, and on
“rare occasions,” he “took presale orders . . . for new products.” (Pl.’s Decl. ¶ 7.)
Hence, Mr. Pickering contends that his job entailed “primarily marketing and
merchandising of Lorillard products.” (Am. Compl. ¶ 11.)
Mr. Pickering was scheduled to work “in the field” from 8:00 a.m. to 5:00 p.m.
Monday through Friday, with the exceptions of an hour lunch break and an hour each
Friday for the completion of administrative tasks. (Pl.’s Dep. 36.) In addition to his
work in the field each day, Mr. Pickering, “[a]fter hours, had to write and answer emails and evaluate sales areas on [his] own time,” and, thus, he “routinely worked in
excess of forty hours in a week and was not paid overtime compensation.” (Pl.’s
Decl. ¶ 3; Pl. Dep. 107 (testifying that he had to complete “computer work after five
o’clock after [he] got home”).) Mr. Pickering typically spent six to eight hours every
week (one to two hours each work night) answering and responding to e-mails in the
evening after he got home from an 8:00 a.m. to 5:00 p.m. work day. (Pl.’s Dep.
109–10.) Responding to these e-mails, most of which were sent by his division
manager, Mr. Kirkham, required him to prepare spreadsheets and identify
“problem[ ]” stores. (Pl.’s Dep. 107, 109–10.) Mr. Pickering worked on his e-mail
responses at home in the evening because he was “under the impression” that his
division manager “wanted those e-mails done when he sent them.” (Pl.’s Dep. 118.)
As further support for his contention that Lorillard expected him to work more
than forty hours a week, Mr. Pickering cites Lorillard’s written policy that provides
Field sales employees are hired on the basis of a 40-hour work week, 8
hours per day, not including a 1-hour lunch break (exclusive of a 1-hour
lunch period), with working hours from 8:00 a.m. to 5:00 p.m.
However, operations may require a longer work day. The lunch period
naturally has to be scheduled into the operating requirements of the
(Pl.’s Reply 18 (citing Ex. C to Doc. # 59).)
Lorillard contends, on the other hand, that sales representatives are not required
to work more than forty hours a week. (Def.’s Br. 22 n.8.) Lorillard provides
declarations from current sales representatives working in Arizona, Georgia, New
Jersey, New York, North Carolina, Maine, Oregon and Rhode Island. Each sales
representative asserts that he or she has never been required or expected to work more
than forty hours a week, that he or she does not work more than forty hours a week,
and that Lorillard does not require its sales representatives to respond to e-mails on
their own time. Rather, each sales representative asserts that Lorillard allots one hour
of administrative time on Fridays to complete paperwork and computer tasks and that
the allotted hour is sufficient for the completion of those tasks. (Decls. (Docs.
# 46–50, 53–54).)
Evidence Pertaining to Job Duties of Other Lorillard Sales
Mr. Pickering submits two declarations relevant to the job duties of other
Lorillard sales representatives. The first is from Brandon Lynum, who worked in the
same region as Mr. Pickering.1
Mr. Lynum was a full-time, salaried sales
representative for Lorillard for one year. (Lynum’s Decl. ¶¶ 1, 5 (Ex. F to Doc.
# 36).) He “spent the majority of [his] time calling on retailers and wholesalers and
servicing accounts” and was primarily involved in “promoting [Lorillard’s] company
products,” which included “setting up displays, posters, and points of sale.”
(Lynum’s Decl. ¶ 2.) His sales activities were restricted in the same manner as Mr.
Pickering’s. Additionally, “[a]fter hours, [Mr. Lynum] had to write and answer emails and evaluate sales areas on [his] own time.” (Lynum’s Decl. ¶ 3.) He also
“routinely worked in excess of forty hours in a week and was not paid overtime.”2
(Lynum’s Decl. ¶ 3.)
Although Mr. Lynum’s Declaration does not indicate the geographical region in which
he worked, Mr. Pickering does not contest Lorillard’s representation that Mr. Lynum worked in
the same region as he. (Def.’s Br. 24.)
Mr. Lynum is the only individual who has filed a written consent to participate in this
proposed collective action. (Consent (Doc. # 58).)
The second declaration is from Mr. Kirkham, who worked for Lorillard as a
division manager from May 2001 until March 2010 and was Mr. Pickering’s direct
supervisor. In his declaration, Mr. Kirkham opines that the “job requirements,
responsibilities and duties” of a Lorillard sales representative “employed within the
Southeastern United States and within states located along the Atlantic coast” are
“essentially the same.” (Kirkham’s Decl. ¶ 2 (Ex. C to Doc. # 36).) He further
contends that Lorillard’s “job description for Sales Representatives . . . [is] consistent
among all regions.” (Kirkham’s Decl. ¶ 2.) In particular, Mr. Kirkham says that,
during his employment, “[t]he primary job duties of Lorillard Sales Representatives
w[ere] neither to conduct nor [to] execute any sales, exchanges, contracts to sell,
consignments for sale, or shipments for sale,” but rather “[t]he primary duty of a
Lorillard Sales Representative was promotional.” (Kirkham’s Decl. ¶¶ 3–4.) Mr.
Kirkham provides no specific statements about the work hours of sales
representatives, whether they typically work more than forty hours in a work week,
or whether he expected Mr. Kirkham to respond to e-mails off the clock (or knew that
Mr. Pickering would have to work more than forty hours a week to respond to e-mail
Lorillard also maintains a position profile questionnaire, which is the
equivalent of a job description for Lorillard’s sales representatives. (Job Description
(Ex. G to Doc. # 36 (enumerating “accountabilities” describing “the end results of job
duties”).) Mr. Seger, Lorillard’s Rule 30(b)(6) representative, testified that the
“accountabilities” are the same for all Lorillard’s sales representatives, but that “how
[those accountabilities] are implemented can vary depending” on location. (Seger’s
Dep. 12 (Ex. E to Doc. # 36).) The accountabilities do not include any discussion of
daily or weekly work hour requirements.
The Amended Complaint and the Answer
In the governing Amended Complaint,3 Mr. Pickering alleges that Lorillard
misclassified him as an FLSA-exempt employee and failed to pay him “overtime at
a rate of one and one-half his regular rate of pay for all hours worked in excess of
forty . . . within a work week,” and that Lorillard has a “wrongful pattern or practice”
of improperly classifying its sales representatives as FLSA-exempt employees. (Am.
Compl. ¶ 13 (Doc. # 23).) Mr. Pickering seeks to recover, on behalf of himself and
all similarly situated employees, unpaid overtime wages, liquidated damages,
prejudgment interest, attorney’s fees and costs. (Am. Compl. ¶¶ 19–20, 24–25.)
The original Complaint was dismissed because Mr. Pickering’s collective action
allegations lacked the level of factual specificity required to survive Lorillard’s Rule 12(b)(6)
motion. (Mem. Op. & Order 4 (Doc. # 20)); see Fed. R. Civ. P. 12(b)(6). Mr. Pickering
subsequently filed the governing Amended Complaint in an effort to cure the pleading
Lorillard’s Answer raises a number of affirmative defenses. It asserts that
several statutory exemptions, including the outside salesperson exemption and the
administration exemption, exclude its sales representatives from the FLSA’s overtime
requirements. It also denies that any violations were willful. (Answer 5 (Doc. # 24).)
The Discovery Procedure
At the initial stages of this litigation, the parties jointly requested a two-phase,
discovery process, with the first phase focused on certification as a collective action
and the second phase focused on discovery related to the merits and damages.
(Report of Parties’ Planning Meeting 1–2 (Doc. # 26).) Incorporating the parties’
request, the Uniform Scheduling Order allotted three months for the first phase of
discovery. (USO § 7 (Doc. # 27).) Also at the parties’ request, the USO set a
deadline one month after the close of the first phase of discovery for Mr. Pickering
to file his motion for conditional certification of a collective action and proposed
notice. (USO § 7.) Subsequently, the three-month discovery deadline was extended
to four months, and the deadline for Mr. Pickering to file his motion for conditional
certification of a collective action also was extended an additional month. (Parties’
Joint Mot. (Doc. # 29); Order Granting Joint Mot. (Doc. # 30).) With the extensions,
the first phase of discovery was to expire on August 1, 2011, and the motion for
conditional certification as a collective action was to be filed no later than September
The USO also governed the deadlines for expert disclosures. Mr. Pickering
was given until June 1, 2011, to identify any expert witnesses and provide the reports
of retained experts. Lorillard’s deadline was July 1, 2011. (USO § 8.) It is
undisputed that Mr. Pickering did not disclose the identity of his sole expert witness
until October 27, 2011, when he filed his reply brief in support of his motion for
conditional certification of a collective action.
Mr. Pickering’s Motion for Conditional Class Certification and
Mr. Pickering timely filed his motion requesting conditional certification of a
collective action and that judicial notice be sent to putative class members. (Pl.’s
Mot. ¶¶ 1–2 (Doc. # 36).) Additionally, Mr. Pickering was permitted to file out-oftime his proposed judicial notice. The proposed notice includes within the class “all
current and former Lorillard . . . employees who were employed as Sales
Representatives for any length of time during the period July 22, 2007, to present.”
(Proposed Notice 1 (Doc. # 38).)
Mr. Pickering’s Motion to Compel
In his brief in support of his Motion for Conditional Class Certification, Mr.
Pickering contends that his attempts to obtain written declarations from other
Lorillard sales representatives concerning their job duties and pay have been stymied
by Lorillard’s policy that prohibits employees, under the threat of criminal and civil
liability, from disclosing to outsiders any “confidential business information.” (Pl.’s
Br. 39–41; Policy (Ex. I to Doc. # 36).) In support of his contention, Mr. Pickering
submits a declaration from his counsel’s investigator, John R. Meek, who attests that,
“[w]hile interviewing current employees, [he] learned that they could not speak with
[him] because of a company policy prohibiting it.” (Meek’s Decl. ¶ 3 (Ex. J to Doc.
# 36).) Mr. Meek summarizes conversations he had with twelve current Lorillard
employees, between July 11 and July 14, 2011 (approximately two-and-a-half weeks
prior to the four-month discovery deadline). The majority of these employees refused
to speak with Mr. Meek on substantive matters pertaining to this lawsuit, stating
either that they had to “clear it” with a supervisor, that they had been instructed to
refer him to Lorillard’s legal department or simply that they could not talk with him
about this case. (Meek’s Decl. (Ex. J to Doc. # 36).) All told, Mr. Meek “was unable
to obtain a written declaration from any of these employees concerning job duties or
pay.” (Meek’s Decl. ¶ 6.) Mr. Pickering believes that because of this policy, which
he contends is retaliatory, Lorillard’s employees “are afraid to exercise their legal
rights under the FLSA.” (Pl.’s Br. 35.)
Mr. Pickering concedes that he has “stopped short of amending his Complaint”
to allege an FLSA retaliation claim. (Pl.’s Reply 4 (Doc. # 59).) He also does not
refute Lorillard’s representation that he did not subpoena any of the sales
representatives contacted by Mr. Meek or attempt to take any depositions, other than
Lorillard’s Rule 30(b)(6) representative (Mr. Seger). Mr. Pickering argues, however,
that the court “certainly has the equitable authority to remedy” Lorillard’s alleged
retaliatory conduct. (Pl.’s Reply 4.)
In the event the court finds that Mr. Pickering’s evidence is insufficient to
warrant conditional certification as a collective action, Mr. Pickering raises an
alternative motion to compel. The motion to compel, incorporated in his brief, seeks
an order that Lorillard “produce the names, addresses, telephone numbers and social
security numbers for all putative Plaintiffs who work or have worked for [Lorillard]
for the three (3) year period prior to the filing of this lawsuit.” (Pl.’s Br. 39.) The
motion to compel also contains a request for an Order instructing Lorillard to
“produce a letter stating that sales representatives, if they choose to do so, may testify
or participate in this case without fear of retaliation,” and further requests that the
statute of limitations on all putative class members be tolled as of the filing date of
this lawsuit, and that the time for filing a second motion for conditional certification
as a collective action be extended for ninety days. (Pl.’s Br. 41.) This alternative
motion to compel was filed three weeks after the close of the first phase of discovery.
Motion for Conditional Class Certification and for Judicial Notice
Mr. Pickering moves for conditional certification of a collective action of
current and former sales representatives employed by Lorillard nationwide within the
three years preceding the filing of this lawsuit and for court-authorized notice to
potential class members. He seeks overtime compensation for all time worked in
excess of forty hours per week for himself and to represent all “similarly situated”
current and former sales representatives subject to Lorillard’s uniform policy of
treating sales representatives as exempt employees.
The FLSA requires employers to pay employees one and one-half times their
regular rates of pay for all hours worked in excess of forty in a work week if the
employees are not “exempt” under several recognized categories. 29 U.S.C. § 207.
Employees may be exempt from mandatory overtime compensation if they are
employed in an administrative capacity or as outside salespersons. See 29 U.S.C.
§ 213(a)(1) (administrative employee and outside salesperson exemptions); 29 C.F.R.
§ 541.200 (defining administrative employee exemption); 29 C.F.R. § 541.500
(defining outside salesperson exemption).
Moreover, the FLSA’s collective action provision authorizes a plaintiff seeking
relief for unpaid overtime compensation to bring a collective action, provided that the
employees are “similarly situated” and opt into the suit by filing “written consent.”
29 U.S.C. § 216(b). When the requirements of § 216(b) are met, “[t]he judicial
system benefits by efficient resolution in one proceeding of common issues of law
and fact arising from the same alleged [unlawful] activity.” Hoffmann-LaRoche Inc.
v. Sperling, 493 U.S. 165, 170 (1989).
As will be fleshed out below, the parties’ arguments require analysis of
(1) what is the standard of proof required to authorize conditional certification of a
collective action and judicial notice to potential opt-in plaintiffs, (2) whether further
discovery should be permitted, (3) whether there is evidence that Lorillard’s sales
representatives are similarly situated nationwide, and (4) whether there is evidence
that other sales representatives want to opt-in this proposed collective action.
The Standard of Proof
The initial issue is whether Mr. Pickering has made the requisite showing to
justify conditional certification of a nationwide collective action and court-authorized
notice. In Hipp v. Liberty National Life Insurance Co., 252 F.3d 1208 (11th Cir.
2001), the Eleventh Circuit “suggest[ed]” a “two-tiered approach to certification of
§ 216(b) opt-in classes” to assist district courts in resolving the similarly situated
inquiry.4 Id. at 1219. Under the first tier, which is labeled the “notice stage,” the
district court must decide, “usually based only on the pleadings and any affidavits
which have been submitted[,] . . . whether notice of the action should be given to
potential class members.” Id. at 1218 (quoting Mooney v. Aramco Servs. Co., 54 F.3d
1207, 1213–14 (5th Cir. 1995), overruled on other grounds by Desert Palace, Inc. v.
Costa, 539 U.S. 90, (2003))). Before notice is given, a “district court should satisfy
itself that there are other employees of the [defendant-]employer who desire to ‘optin’ and are ‘similarly situated’ . . . .” Dybach v. State of Fla. Dep’t of Corrs., 942
F.2d 1562, 1567–68 (11th Cir. 1991).
“Similarly situated” is not defined in the FLSA. The Eleventh Circuit also has
not “adopted a precise definition of the term”; however, it has provided some
guidance. Morgan v. Family Dollar Stores, 551 F.3d 1233, 1259–60 (11th Cir.
Employees should be “‘similarly situated’ with respect to their job
requirements and with regard to their pay provisions.” Id. at 1259 (citing Dybach,
The collective action in Hipp was brought under the Age Discrimination in Employment
Act of 1967, as amended, 29 U.S.C. §§ 621-34. Because the ADEA requires plaintiffs seeking to
certify a class to use the opt-in class mechanism provided in § 216(b), Hipp’s analysis is relevant
to FLSA collective actions. Cameron-Grant v. Maxim Healthcare Servs., Inc., 347 F.3d 1240,
1243 (11th Cir. 2003) (citing Hipp, 252 F.3d at 1216).
942 F.2d at 1568). And “similar” does not mean “identical.” Grayson v. K Mart
Corp., 79 F.3d 1086, 1096 (11th Cir. 1996) (citation and internal quotation marks
omitted). At the same time, however, “a plaintiff must make some rudimentary
showing of commonality between the basis for his claims and that of the potential
claims of the proposed class, beyond the mere facts of duties and pay provisions.”
White v. Osmose, Inc., 204 F. Supp. 2d 1309, 1314 (M.D. Ala. 2002) (Albritton, J.),
cited with approval in Anderson v. Cagles’s , Inc., 488 F.3d 945, 953 (11th Cir.
2007). “Without such a requirement, it is doubtful that § 216(b) would further the
interests of judicial economy, and it would undoubtedly present a ready opportunity
for abuse.” Id.
The plaintiffs’ burden at the notice stage “is not heavy.” Grayson, 79 F.3d
at 1097. “The plaintiffs bear the burden of demonstrating a ‘reasonable basis’ for
their claim of class-wide discrimination.” Id. That burden may be satisfied by
“substantial allegations of class-wide discrimination, that is, detailed allegations
supported by affidavits which successfully engage defendants’ affidavits to the
contrary.” Id. (citation and internal quotation marks omitted). Hipp described this
standard as “fairly lenient,” given that generally the evidence is meager early in the
litigation. 252 F.3d at 1218 (quoting Mooney, 54 F.3d at 1214).
notwithstanding this fairly lenient standard, “there must be more than ‘only counsel’s
unsupported assertions that FLSA violations [are] widespread and that additional
plaintiffs would come from other stores.’” Morgan, 551 F.3d at 1261. Additionally,
under the first step of the Hipp analysis, district courts “should treat the initial
decision to certify and the decision to notify potential collective action members
synonymous.” Morgan, 551 F.3d at 1261 n.40.
The second stage generally is where the rubber meets the road. It is “‘typically
precipitated by a motion for decertification by the defendant usually filed after
discovery is largely complete and the matter is ready for trial.’” Hipp, 252 F.3d
at 1218 (quoting Mooney, 54 F.3d at 1214). Armed with “‘much more information,’”
the court “‘makes a factual determination on the similarly situated question.’” Id.
(quoting Mooney, 54 F.3d at 1214). Factors that the court may consider are the
“(1) disparate factual and employment settings of the individual plaintiffs; (2) the
various defenses available to defendants that appear to be individual to each plaintiff;
and (3) fairness and procedural considerations.” Morgan, 551 F.3d at 1261 (citation,
alterations and internal quotation marks omitted). At this stage, the similarities “must
extend beyond the mere facts of job duties and pay provisions and encompass the
defenses to some extent.” Id. at 1262 (citation and internal quotation marks omitted).
Depending on the outcome of the similarly situated evidentiary analysis, the district
court either allows the collective action to proceed to trial, or decertifies the class,
dismissing the opt-in plaintiffs without prejudice and permitting the original plaintiffs
to go to trial on their individual claims.5 See id. (citing Hipp, 252 F.3d at 1314).
Because Mr. Pickering contends that “very limited discovery has been
conducted,” he heavily relies upon the fairly lenient burden that an FLSA plaintiff
bears during the first stage of the Hipp analysis. (Pl.’s Reply 13; see also Pl.’s Reply
12 (“Plaintiff has taken only one deposition.”).) On the other hand, Lorillard
emphasizes that Mr. Pickering sought and the court approved a bifurcated discovery
schedule to allow three months (which was later extended to four months) of
discovery on the issue of conditional certification of a collective action. (Def.’s Br.
20.) Given that Mr. Pickering had the opportunity to conduct discovery, Lorillard
contends that a “more rigorous standard” for evaluating the appropriateness of
conditional certification should be applied, and that any shortage of discovery is Mr.
Pickering’s fault alone. (Def.’s Br. 20.) Lorillard also retorts that, while it is true that
Mr. Pickering “t[ook] one deposition,” this is so “only because . . . he elected . . . to
take one deposition.” (Def.’s Surreply 3.)
The Eleventh Circuit has declined to “specify how plaintiffs’ burden of demonstrating
that a collective action is warranted differs at the second stage.” Anderson, 488 F.3d at 953. In
Anderson, the court explained: “It is sufficient to conclude . . . that at the second stage plaintiffs
may – the ultimate decision rests largely within the district court’s discretion – not succeed in
maintaining a collective action under § 216(b) based solely on allegations and affidavits,
depending upon the evidence presented by the party seeking decertification.” Id.
Lorillard’s position finds support in the decisional law of district courts in this
circuit. Courts have departed from Hipp’s more lenient standard where a period of
discovery preceded the filing of the motion for conditional certification of a collective
action. In White, because there had been “extensive discovery,” the court “carefully
consider[ed] the submission of the parties with respect to the class allegations, rather
than merely relying on the handful of affidavits that support[ed] [the plaintiff’s]
position.” 204 F. Supp. 2d at 1313 n.2. In Davis v. Charoen Pokphand (USA) Inc.,
303 F. Supp. 2d 1272 (M.D. Ala. 2004) (Thompson, J.), the court also rejected the
plaintiffs’ argument for a Hipp first-stage review in favor of a more exacting review.
The Davis court explained that “[t]he rationale for the ‘fairly lenient standard’ . . .
disappears . . . once plaintiffs have had an opportunity to conduct discovery with
respect to defendant’s policies and procedures.” Id. at 1276 (internal citations
omitted); see also Ledbetter v. Pruitt Corp., No. 05cv329, 2007 WL 496451, at *2
(M.D. Ga. Feb. 12, 2007) (Royal, J.) (finding that, because the motion for
certification was filed after the close of discovery, the case was “in a different
procedural posture than that envisioned by Hipp” and “therefore a more searching
standard of review [was] appropriate”); Holt v. Rite Aid Corp., 333 F. Supp. 2d 1265,
1274 (M.D. Ala. 2004) (Albritton, J.) (considering the defendant’s evidence in
deciding whether to conditionally certify an FLSA collective action because there was
“fairly extensive evidence on the issue of whether putative class members [were]
similarly situated”); Brooks v. BellSouth Telecommunications, Inc., 164 F.R.D. 561,
566 (N.D. Ala. 1995) (Blackburn, J.) (analyzing the motion for conditional
certification of a collective action in light of the extensive discovery conducted by the
The reasoning of the foregoing cases is persuasive. Hipp envisions that the
certification process will begin early in the litigation prior to discovery and, thus,
gives plaintiffs some leeway in proof at the initial stage. When the parties have had
access to discovery and the opportunity to amass evidence in support of the
complaint’s collective action allegations, the protection provided by Hipp’s first stage
review is no longer needed. That is what happened in this case. The parties asked
the court to forego an initial decision on collective action certification, in favor of
first permitting discovery. The parties jointly requested, in all, four months to
conduct discovery, and Mr. Pickering requested permission to file his motion for
conditional certification of a collective action at the five-month mark. Those requests
were granted. The rationale for applying the fairly lenient standard in Hipp no longer
fits the procedural posture of this case. It is appropriate, therefore, to apply a stricter,
more searching, standard of review than that advocated in Hipp for a first-stage
review. Thus, Mr. Pickering will not be permitted to rely on the allegations in the
Amended Complaint. Rather, he must rely on the evidence, and all the evidence will
be considered, not just Mr. Pickering’s. With that said, the court need not define
precisely where along the continuum of proof this case lies. If this case were at the
beginning stages, it is dubious that Mr. Pickering would satisfy Hipp’s fairly lenient
standard. Moreover, after four months of discovery, Mr. Pickering has produced only
limited evidence of the job duties of sales representatives in his region, and none of
the job duties of sales representatives outside his region, and he has submitted no
evidence that any other sales representative besides himself and one other regional
sales representative actually worked overtime. It is clear based upon this evidence,
standing alone and juxtaposed against Lorillard’s evidence of sales representatives’
duties outside Mr. Pickering’s region, that the evidence is insufficient to warrant
conditional certification of a nationwide collective action.
Motion to Compel
Alternatively, Mr. Pickering asks for more time to conduct discovery and for
an order compelling Lorillard to produce discovery and to provide assurances to its
sales representatives that they can participate in this litigation without retaliation.
These requests come too late.
Mr. Pickering did not suggest during the four-month, first-phase discovery
period that Lorillard was hampering his discovery efforts. Indeed, ten weeks into the
discovery period, in a joint motion to extend the discovery period, the parties
represented that they had “in good faith cooperated,” that they were “engaged in
written discovery concerning conditional class certification (including serving and
responding to document requests, interrogatories, and deposition notices),” and that
they “[were] in the process of exchanging documents, and h[ad] agreed upon
depositions.” (Joint Mot. ¶ 2 (Doc. # 29).) No discord between the parties was cited
in that motion.
Moreover, it appears that Mr. Pickering learned, at the latest, three weeks prior
to the close of the four-month discovery period about Lorillard’s policy that he now
contends prevented him from talking to Lorillard’s sales representatives. He did not
raise this alleged discovery barricade at that time. Instead, he waited until six weeks
later – more than three weeks after the close of discovery on conditional collective
action certification – to bring his discovery problems to the attention of the court and,
even then, only as an alternative request in his brief in support of his motion for
Mr. Pickering does not explain why he did not file a motion to compel during
the discovery period, why he did not use available discovery tools to compel
testimony from the alleged recalcitrant witnesses, why he waited until he filed his
motion for conditional certification of a collective action to raise the issue, or why
even then he styled his motion to compel as an alternative request. Absent any
explanation from Mr. Pickering, the court must conclude that he was dilatory in
waiting twenty-five days after the close of discovery on conditional certification to
raise the issue that Lorillard prevented him from obtaining the discovery needed to
support his motion for conditional certification as a collective action. On this record,
permitting the parties to litigate the motion to compel would neither advance the
interests of justice nor further efficient use of judicial resources. Moreover, Lorillard
has protested that it would suffer prejudice from additional discovery at this late
In sum, no ground has been offered that warrants consideration of the untimely
motion to compel. The motion to compel, therefore, will be denied,6 and additional
discovery on the issue of conditional certification will not be permitted. See, e.g.,
Evans v. Boyd Rest. Group, LLC, 240 F. App’x 393, 397 (11th Cir. 2007) (holding
that “[t]he district court did not abuse its discretion when it denied the request to
extend discovery, which was made the day before the end of the discovery period
with no explanation for the delay”). Mr. Pickering is stuck with the evidence he has.
An additional basis exists for denying the motion to compel; it does not contain the
certification required by Rule 37(a) of the Federal Rules of Civil Procedure. Written
communications between counsel do not constitute a conference. Discovery motions must be
accompanied by a certification that the movant has in good faith conferred or attempted to confer
with other affected parties in an effort to resolve the dispute without court action.
In support of his position that other Lorillard sales representatives are similarly
situated and in actuality non-exempt employees, Mr. Pickering relies upon the
declarations from Mr. Lynum, a one-time sales representative in his region, and from
Mr. Kirkham, Mr. Pickering’s former division manager. (Pl.’s Br. 36.) He also cites
Lorillard’s written job description and policy that a sales representative’s “operations
may require a longer work day” than 8:00 a.m. to 5:00 p.m. (Pl.’s Reply 18 (citing
Ex. C to Doc. # 59).) This evidence is insufficient to justify a nationwide collective
First, Mr. Pickering’s and Mr. Lynum’s declarations are too localized to
support a nationwide collective action. The declarations are limited to describing
their own specific job duties. Neither Mr. Pickering nor Mr. Lynum mentions the
duties of other sales representatives, contends that his job duties are typical of those
of sales representatives either within or outside his division, or claims to be familiar
with the job duties of other Lorillard sales representatives. Indeed, Mr. Pickering
admits that he has no knowledge of how other sales representatives outside his
division (of six to eight sales representatives) perform their work. (Pickering’s Dep.
88–89.) Hence, these two declarations do not provide a glimpse of what other
Lorillard’s sales representatives in other regions of the country do.
The third declaration from Mr. Kirkham does not fill the void left by Mr.
Pickering’s and Mr. Lynum’s declarations. Mr. Kirkham’s bare statements that the
job duties of sales representatives are “essentially the same” and “consistent among
all regions” are conclusory. (Kirkham’s Decl. ¶ 2.) Also, his conclusions that the
sales representatives’ job duties are not sales-oriented, but instead are “promotional,”
merely track the legal phrases cited in the relevant FLSA regulations, without any
supporting factual details.
(Compare Kirkham’s Decl. ¶¶ 4–7 (using phrases
“primary duty” and lack of “discretion”), with 29 C.F.R. § 541.200 (defining the
“primary duty” of an administrative employee as encompassing the “exercise of
discretion”) and 29 C.F.R. § 541.500 (defining the “primary duty” of an outside
salesperson as “making sales”). The declaration lacks any factual particulars about
the job duties actually performed on a daily basis by sales representatives, the time
devoted each day to those duties, or the level of direct supervision exercised over
those duties. Not only is Mr. Kirkham’s declaration conclusory, but it is limited in
geographical scope to the Southeastern and Atlantic Coastal region and, thus,
neglects any information about the job duties of the rest of Lorillard’s sales
representatives in other parts of the United States.
Second, there is a dearth of evidence that Lorillard’s alleged unlawful policy
of misclassifying its sales representatives as exempt from the FLSA’s overtime
provisions resulted in sales representatives being denied overtime pay. There is scant
evidence that Lorillard’s sales representatives were required or permitted to or in fact
did work more than forty hours a week.7 Mr. Kirkham provides no information about
the work hours of sales representatives, whether they typically work more than forty
hours in a work week, or whether they performed required administrative tasks in the
evening in addition to working a forty-hour week. Mr. Kirkham’s declaration also
is notably silent as to Mr. Pickering’s “impression” that he (Mr. Kirkham) expected
or knew that Mr. Pickering would have to respond to e-mails at home in the evening.
(Pl.’s Dep. 118.) Furthermore, neither Mr. Pickering nor Mr. Lynum provides any
information relating to Lorillard’s employment practices pertaining to the number of
hours other sales representatives actually worked.8
This leaves Mr. Pickering’s belief that other sales representatives in his
division also were “spending a lot of time at night on e-mails,” but that belief by itself
carries no evidentiary weight. (Pl.’s Dep. 111, 124–25); cf. Pace v. Capobianco, 283
F.3d 1275, 1278–79 (11th Cir. 2002) (“[A]n affidavit stating only that the affiant
‘believes’ a certain fact exists is insufficient to defeat summary judgment by creating
See 29 C.F.R. § 785.11 (2008) (“Work not requested but suffered or permitted is work
It should be noted that Lorillard’s employees who refused to talk to Mr. Meek appeared
to have worked in Mr. Pickering’s region and, thus, are not a representative cross-section of sales
representatives employed in other regions.
a genuine issue of fact about the existence of that certain fact.”); see also Boyd v.
Alutiiq Global Solutions, LLC, No. 11cv753, 2011 WL 3511085, at *6 (N.D. Ill. Aug.
8, 2011) (“[D]eclarations filed in support of a motion for conditional certification
must be based on personal knowledge.”). Even if it did, his belief addressing the
duties of the six or eight sales representatives in his division would be of limited
utility for justifying nationwide certification. The only evidence supporting his
allegations that Lorillard’s sales representatives were required to work overtime
performing administrative tasks comes from Mr. Pickering himself and one other
sales representative in his region. Evidence consisting of declarations from two sales
representatives from the same region is insufficient to warrant nationwide collective
action certification for sales representatives in all of Lorillard’s 787 territories, 122
divisions, 20 regions, and 4 areas across the country. Cf. Ohsann v. L.V. Stabler
Hosp., No. 2:07cv875, 2008 WL 2468559, at *2 (M.D. Ala. 2008) (Watkins, J.)
(putative FLSA class members were subject to an automatic thirty-minute payroll
reduction for a meal break, but routinely were required to work a portion of that meal
period without being paid overtime).
Third, a standardized job description is insufficient to justify a nationwide
collective action based upon a claim that the employer improperly classified a
category of employees as exempt. In Holt v. Rite Aid Corp., 333 F. Supp. 2d 1265
(M.D. Ala. 2004), for example, the plaintiffs attempted to conditionally certify an
FLSA collective action of all managers and assistant managers nationwide, who they
alleged had been improperly classified as exempt from overtime. Noting that it was
not a case where “janitors are being classified as exempt executives,” the court
declined to find that all managers were “similarly situated” based on the fact that they
were all classified as exempt and all had the same job description. Id. at 1271–73.
Rather, the court found that it must analyze the nature of each employee’s job duties,
and the degree to which evidence regarding the plaintiffs’ job duties can be applied
to all other employees. Id.; see also Forney v. TTX Co., No. 05cv6257, 2006 WL
1030194, at *3 (N.D. Ill. April 17, 2006) (“Whether similarly situated employees
exist depends on the employee’s actual qualifications and day-to-day duties, rather
than their job descriptions.” (collecting cases)). This rationale would appear to apply
equally to the written policy providing that a sales representative’s “operations may
require a longer work day” because the policy does not address any of the actual work
duties of individual sales representatives.9 (Ex. C to Doc. # 59.)
Mr. Pickering also argues extensively that his actual job duties (i) disqualify him for the
administrative exemption because he did not exercise sufficient discretion and independent
judgment and (ii) disqualify him for the outside salesperson exemption because his job involved
primarily promotional, rather than sales, activities. (Pl.’s Br. 7–30, 35.) Lorillard contends that
whether its sales representatives are properly exempted involves a highly individualized inquiry
into job duties, further demonstrating that this action is ill suited for conditional certification as a
collective action. (Def.’s Br. 28–29.) These arguments need not be addressed now in light of the
court’s findings above that conditional certification is not warranted. Rather, these inquiries will
In sum, there is insufficient evidence that Mr. Pickering and the broad class he
wishes to represent are similarly situated with respect to job duties. He fails to show
sufficient evidence of similarly situated sales representatives or any basis from which
to conclude that a pattern and practice of FLSA overtime violations permeates
nationwide, notwithstanding that he had four months to conduct discovery. This
conclusion can be reached without consideration of the declarations submitted by
Lorillard. These declarations suggest, however, that Lorillard’s sales representatives
in regions outside Mr. Pickering’s have varied job duties, depending upon, for
example, whether the sales representative services independent or chain stores, the
volume of sales of these stores, whether the sales representatives interact with
wholesalers, and the size of the territory. In other words, Lorillard’s evidence lends
no support to Mr. Pickering’s contentions.10
Number of Opt-in Plaintiffs
Mr. Pickering also must demonstrate that there are other Lorillard sales
representatives who have an opt-in interest in this litigation. See Dybach, 942 F.2d
at 1567–68. “[U]nsupported expectations that additional plaintiffs will subsequently
be taken up on a merits examination of Mr. Pickering’s individual claims.
The court is not making a credibility determination because Mr. Pickering has no
competent evidence addressing the job duties of sales representatives outside his region.
come forward” are insufficient. Mackenzie v. Kindred Hosps. East, L.L.C., 276 F.
Supp. 2d 1211, 1220 (M.D. Fla. 2003).
Over the eighteen-month course of this litigation, only one plaintiff has filed
a consent form to join this action as an opt-in plaintiff. Mr. Pickering has no other
evidence that any other sales representative shares the same interest in this litigation
as he and Mr. Lynum. The only other evidence pertaining to interest comes from
Lorillard, whose declarants have represented that they have no desire to join this
lawsuit as opt-in Plaintiffs. Mr. Pickering’s failure to show that there are others who
want to opt in also precludes granting his motion for conditional certification of a
Mr. Pickering’s evidence is inadequate for approving conditional certification
of a collective action and judicial notice. Accordingly, this lawsuit will proceed as
an FLSA lawsuit by a single employee against his former employer for alleged
violations of the FLSA’s overtime laws.11
The court need not address Lorillard’s argument that the temporal scope of the
conditional class should be limited to the two years preceding the filing of this suit pursuant to 29
U.S.C. § 255(a) because the alleged violations were not willful.
Lorillard’s Motion to Exclude Mr. Pickering’s Expert Testimony
In his reply brief, Mr. Pickering relies on an affidavit from his expert, Lyndel
L. Erwin, who was employed by the Wage and Hour Division of the United States
Department of Labor for more than thirty-five years. In that affidavit, Mr. Erwin
opines that Lorillard’s sales representatives are “similarly situated in job duties,” are
“subject to a common practice of being treated as exempt salaried employees in
violation of the FLSA,” and do not qualify for the administrative or outside
salesperson exemptions. (Pl.’s Reply 2, Ex. A.) It is undisputed that Mr. Pickering
disclosed the identity and affidavit of Mr. Erwin for the first time when he filed his
reply brief on October 27, 2011.
Lorillard moves to exclude Mr. Erwin’s testimony for failure of Mr. Pickering
to comply with the June 1, 2011 deadline for disclosure of experts. (See USO § 8);
see also Fed. R. Civ. P. 37(a). It contends that at this late date, it will suffer
substantial prejudice if the affidavit is considered. Lorillard further asserts that Mr.
Erwin offers improper testimony regarding legal conclusions, namely whether Mr.
Pickering was exempt from the FLSA as an administrative employee or outside
salesperson and whether Lorillard’s sales representatives are similarly situated.
(Def.’s Br. on Mot. Strike 10 (Doc. # 61).)
Mr. Pickering responds that the USO’s June 1, 2011 deadline does not govern
the disclosure of Mr. Erwin’s expert opinions because his affidavit is submitted solely
in rebuttal to Lorillard’s evidence, in particular declarations from four of Lorillard’s
division managers.12 Because these declarations allegedly “are replete with testimony
that far exceed that of a lay opinion,” Mr. Pickering argues that he should be
permitted to counter Lorillard’s expert testimony with his own expert testimony, as
provided in Rule 26(a)(2)(D)(ii) of the Federal Rules of Civil Procedure.13 (Pl.’s
Resp. to Mot. Strike 3 (Doc. # 64).) Mr. Pickering concedes, however, that Mr.
Erwin cannot testify about legal conclusions and that “[a]ny statement within [Mr.
Erwin’s expert affidavit] . . . that this court finds as directing the court to a legal
conclusion should be stricken.” (Pl.’s Resp. to Mot. Strike 8.)
Lorillard replies that the declarations from its employees do not contain expert
testimony, but rather contain testimony based upon knowledge garnered about
Lorillard’s business by virtue of their positions, as anticipated by Rule 701 of the
Federal Rules of Civil Procedure. (Def.’s Reply 3 (Doc. # 71).) Lorillard asserts that
Mr. Pickering merely is attempting to evade the expert witness disclosure
These division managers are Stacy Bradberry, Stacy Coligan, Hoon Kim, and Kevin
Sunderland. (Docs. # 48, 49, 52, 56.)
Mr. Pickering has not argued that the declarations should be excluded for failure of
Lorillard to disclose the declarants’ identities by the July 1, 2011 expert disclosure deadline.
(See USO § 8.)
requirements set forth in Rule 26(a)(2) by improperly characterizing the declarations
as containing expert testimony that required Mr. Erwin’s rebuttal. (Def.’s Reply 4.)
The disclosure of expert testimony and reports is governed by Rule 26(a)(2) of
the Federal Rules of Civil Procedure. Rule 26(a)(2)(A) provides that “a party must
disclose to the other parties the identity of any witness it may use at trial to present
evidence under Federal Rule of Evidence 702, 703, or 705.” Rule 26(a)(2)(B) sets
forth additional requirements for an expert who is “retained or specially employed,”
such as requiring “a written report . . . prepared and signed by the witness.” Rule
26(a)(2) disclosures must be made “at the times and in the sequence that the court
orders.” Fed. R. Civ. P. 26(a)(2)(D)(i). The court-ordered deadline for Mr. Pickering
to make his Rule 26(a)(2) expert disclosures was June 1, 2011. (USO § 8.)
Rule 26(a)(2)(D)(ii) provides, however, that a party may identify a rebuttal
expert “if the evidence is intended solely to contradict or rebut evidence on the same
subject matter identified by another party under 26(a)(2)(B) . . . .”
26(a)(2)(D)(ii) thus focuses on rebutting evidence offered by another party’s expert
witness; it does not apply to testimony offered under Rule 701. See Fed. R. Evid. 701
(defining the limits of opinion testimony by lay witnesses).
The initial inquiry is whether the declarations of Lorillard’s four division
managers consist of expert testimony. If they do not, then Mr. Pickering cannot rely
on Rule 26(a)(2)(D)(ii) to excuse his failure to comply with the USO’s June 1, 2011
expert disclosure deadline.
Rule 701 allows a lay witness to offer opinions or inferences if they are
“(a) rationally based on the perception of the witness, (b) helpful to a clear
understanding of the witness’ testimony or the determination of a fact in issue, and
(c) not based on scientific, technical, or other specialized knowledge within the scope
of Rule 702.” Fed. R. Evid. 701. In Tampa Bay Shipbuilding & Repair Co., 320 F.3d
1213 (11th Cir. 2003), relied upon by Lorillard, the Eleventh Circuit rejected an
argument that a company’s employees, who were involved in repairing the ship in
dispute, could not offer lay opinions about the reasonableness of the company’s
charges and hours expended to repair the ship. The argument was based upon the
then-new addition of subsection (c) to Rule 701. Relying on the Advisory Committee
Notes to the 2000 amendments to Rule 701, the Eleventh Circuit concluded that
“testimony by business owners and officers based on knowledge derived from their
positions is one of the prototypical areas intended to remain undisturbed” by Rule
701’s amendment. See id. at 1221-22; see Fed. R. Evid. 701, 2001 advisory
committee’s note (“[M]ost courts have permitted [owners and officers] to testify . . .
without the necessity of qualifying the witness as an . . . expert . . . based upon . . . the
particularized knowledge that the witness has by virtue of his or her position in the
business. The amendment does not purport to change this analysis.”); see also United
States v. Hill, 643 F.3d 807, 841 (11th Cir. 2011) (“As the Advisory Committee made
clear and as we have held, . . . Rule 701 does not prohibit lay witnesses from
testifying based on particularized knowledge gained from their own personal
experiences.” (citing Tampa Bay Shipbuilding & Repair Co., 320 F.3d at 1221–22)).
Lorillard’s four division managers based their testimony on their particularized
knowledge gained from their years of experience working for Lorillard in its
managerial sales operations. Each has worked more than a decade supervising
Lorillard’s sales representatives. (Bradberry’s Decl. (eighteen years as a division
manager); Coligan’s Decl. (fourteen years as a division manager); Kim’s Decl.
(fourteen years as a division manager); Sunderland’s Decl. (thirty years with Lorillard
in management positions).) These division managers possess firsthand knowledge
of the job duties of sales representatives based upon their employment with Lorillard.
Given their decades of experience, their testimony is rationally based on their
perceptions of what a sales representative does and does not do. That testimony is
helpful for resolving the similarly situated inquiry. As in Tampa Bay Shipbuilding,
their testimony is not based on expert knowledge, but is permissible under Rule 701.14
It is worth noting that Mr. Pickering does not contend that the division manager
declaration submitted by him is governed by Rule 702.
Because Rule 26(a)(2) does not apply to Lorillard’s division manager declarations,
the court rejects Mr. Pickering’s contention that the disclosure of Mr. Erwin is
controlled by Rule 26(a)(2)(c).
Lorillard moves to exclude Mr. Erwin’s affidavit based upon Rule 37(c)(1),
which provides, in pertinent part, that a party who “fails to provide information or
identify a witness as required by Rule 26(a)[,] . . . is not allowed to use that
information or witness to supply evidence on a motion . . . , unless the failure was
substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1). The failure to provide
notice was without substantial justification, for the reasons set out above, and that
failure was not harmless. The identity of Mr. Erwin was disclosed fifteen months
after this lawsuit’s filing, nearly three months after the expiration of discovery on
conditional class certification, almost five months after the deadline for Mr. Pickering
to disclose his expert witnesses, and almost four months after the deadline for
Lorillard to disclose its expert witnesses. The tardy disclosure deprived Lorillard of
the opportunity to depose Mr. Erwin, to conduct discovery to challenge Mr. Erwin’s
opinions and/or qualifications, and to prepare and submit a rebuttal expert report.
(Def.’s Br. on Mot. Strike 5–6 (Doc. # 61).) For these reasons, the court finds that
Lorillard’s motion to exclude the testimony of Mr. Erwin is due to be granted.15
For the foregoing reasons, Mr. Pickering fails to show that an order
conditionally certifying an FLSA collective action or an order compelling discovery
is warranted. Additionally, Mr. Pickering’s failure to disclose his expert witness
within the time prescribed by the USO is neither substantially justified nor harmless.
Accordingly, it is ORDERED that (1) Mr. Pickering’s Motion for Conditional Class
Certification and for Judicial Notice (Doc. # 36) is DENIED, (2) Mr. Pickering’s
Motion to Compel (Doc. # 36-1) is DENIED, and (3) Lorillard’s Motion to Strike
Plaintiff’s Expert Affidavit and Exclude Testimony from Plaintiff’s Expert (Doc.
# 60) is GRANTED, but Lorillard’s request for costs, expenses and attorney’s fees
incurred in connection with filing the motion is DENIED.
DONE this 30th day of January, 2012.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE
In the court’s discretion, Lorillard’s request for costs, expenses and attorney’s fees
incurred in connection with filing the motion to exclude is due to be denied.
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