Wells v. Gourmet Services Inc. et al (MAG+)
ORDER that Defendants' 96 Motion for Reconsideration is DENIED as further set out in the order. Signed by Chief Judge William Keith Watkins on 7/15/2015. (dmn, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
GOURMET SERVICES, INC., et al.,
) CASE NO. 2:13-CV-516-WKW
Before the court is Defendants’ motion for reconsideration (Doc. # 96), in
which Defendants request that the court reconsider its order (Doc. # 90) granting
Plaintiff Lawrence Wells’s motion to strike Defendants’ FLSA defenses (Doc. # 85).
Mr. Wells’s motion to strike was granted on June 30, 2015, in light of Defendants’
failure to raise properly the exemptions as affirmative defenses. Mr. Wells responded
in opposition to the motion for reconsideration, arguing that the court’s initial
determination was appropriate. (Doc. # 99.) Upon a careful review of Defendants’
motion, the applicable record, the circumstances attending this case, and relevant case
law, the motion is due to be denied.
A district court has broad discretion to reconsider an interlocutory order. See
Toole v. Baxter Healthcare Corp., 235 F.3d 1307, 1315 (11th Cir. 2000); see also
United States v. Acosta, 669 F.2d 292, 293 (5th Cir. Unit B 1982) (“[T]he district
court has broad power to reconsider the correctness of its interlocutory rulings.”).1
Defendants assert that reconsideration is appropriate “because without it, manifest
injustice will occur.” (Doc. # 96, at 7.) Specifically, they argue that (1) Mr. Wells
was on notice as to Defendants’ likely reliance upon FLSA exemption defenses; (2)
because he had been put on notice, Mr. Wells would not suffer prejudice or unfair
surprise should Defendants be allowed to raise FLSA exemption defenses during trial;
and (3) the FLSA exemption “defenses are at the very heart of [Defendants’] defense
to the FLSA claim asserted by” Mr. Wells. (Doc. # 96, at 14.)
As is routinely recognized by the Eleventh Circuit, the “[f]ailure to plead an
affirmative defense generally results in a waiver of that defense.” Latimer v. Roaring
Toyz, Inc., 601 F.3d 1224, 1239 (11th Cir. 2010). Defendants correctly point out,
however, that, “[w]hen a plaintiff has notice that an affirmative defense will be raised
at trial, the defendant’s failure to comply with Rule 8(c) does not cause the plaintiff
And, when the failure to raise an affirmative defense does not
prejudice the plaintiff, it is not error for the trial court to hear evidence on the issue.”
Hassan v. U.S. Postal Serv., 842 F.2d 260, 263 (11th Cir. 1988). In light of these
principles, Defendants highlight three facts that they believe establish that Mr. Wells
was on notice that Defendants would raise the FLSA exemption defense, thereby
avoiding any prejudice.
First, Defendants contend that Mr. Wells knew that exemptions to his FLSA
Decisions of Unit B of the former Fifth Circuit are binding precedent in this
claims existed, and they argue that Mr. Wells’s pleadings evidence an express intent
to evade the exemptions’ reach. Second, Defendants assert that their former counsel
put Mr. Wells on notice that they would rely on the exemption defenses when he
mentioned them during a hearing before the Magistrate Judge. Third, Defendants
argue that their express inclusion of the exemption defenses in the proposed pretrial
order served to cure any procedural errors created by not pleading the defenses in an
Defendants’ arguments, however, are without merit because, as discussed
below, Mr. Wells would be unduly prejudiced should Defendants be allowed to raise
the improperly pleaded exemption defenses at this stage of the litigation.
Defendants are not merely seeking to interject exemption defenses accidentally
missing from an otherwise complete answer to Mr. Wells’s Amended Complaint.
Rather, Defendants have not answered the operative complaint at all. Second, while
the former defense counsel mentioned his belief that exemptions were relevant in this
case on a singular occurrence in response to the Magistrate Judge’s questioning, the
Magistrate Judge specifically informed both parties in the Order and Recommendation
that such defenses had yet to be raised by Defendants. (Doc. # 64, at 20 (notifying the
parties that whether Mr. Wells qualified as an exempt employee was “an affirmative
defense, and, if raised, the burden of proving the exemption is on [Mr.] Wells’s
employer”) (emphasis added).) Defendants, even after receiving this warning, did not
circuit. Stein v. Reynolds Sec., Inc., 667 F.2d 33, 34 (11th Cir. 1982).
raise exemption defenses. Third, upon Mr. Wells’s receipt of Defendants’ proposed
pretrial order stipulations, he immediately objected to any inclusion of FLSA
exemptions on the ground that they had not been properly raised as affirmative
defenses and their inclusion weeks prior to trial would constitute undue prejudice.2
For the foregoing reasons, and having considered and weighed the arguments
of undue prejudice of both sides, Defendants will not be allowed to raise FLSA
exemption defenses at trial as Mr. Wells did not have fair notice that Defendants
would rely on the defenses and their assertion at this stage of the litigation would
constitute undue prejudice. Accordingly, Defendants’ Motion for Reconsideration
(Doc. # 96) is DENIED.
DONE this 15th day of July, 2015.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE
This case has been pending for almost twenty-four months, and the court is informed
that Mr. Wells is currently employed in Dubai and that his attendance at the upcoming trial
required significant advance planning and costs, and cannot be easily modified. The court is
unwilling this late in the litigation to add a defense, and attendant complications because of Mr.
Wells’s whereabouts, that could have been raised and addressed much earlier, but for the neglect
of Defendants and/or their former counsel.
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