Todd v. Daewon America, Inc.

Filing 24

OPINION AND ORDER that defendant Daewon America, Inc.'s motion to strike 20 is denied. Signed by Honorable Judge Myron H. Thompson on 2/13/2013. (Attachments: # 1 Civil Appeals Checklist)(jg, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, EASTERN DIVISION
KELVIN TODD,
Plaintiff,
v.
DAEWON AMERICA, INC.,
Defendant.

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CIVIL ACTION NO.
3:11cv1077-MHT
(WO)

OPINION AND ORDER
Plaintiff Kelvin Todd brings this lawsuit under the
Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201-219, on
behalf of himself and others similarly situated, alleging
that his former employer, defendant Daewon America, Inc.,
violated the FLSA’s overtime-pay provisions.

The cause

is before the court on Daewon’s motion to strike evidence
from the record.

For reasons that will be discussed, the

motion will be denied.
Daewon asks the court to strike three exhibits that
Todd filed in support of his motion for conditional
certification of a FLSA collective action.
pull

data

from

Todd’s

time

sheets

and

The exhibits
purport

to

illustrate

the

systematic

shorting

of

overtime

from

Todd’s pay.
The Federal Rules of Civil Procedure restrict the use
of a motion to strike to the pleadings.

A motion to

strike is not an appropriate vehicle for a general attack
on

another

litigant’s

affidavits

and

evidence.

See

Lowery v. Hoffman, 188 F.R.D. 651, 653 (M.D. Ala 1999)
(Thompson, J.); Fed. R. Civ. P. 12(f); see also 2 James
Wm. Moore, et al., Moore's Federal Practice § 12.37 [2]
(3d ed.1999) ("Only material included in a ‘pleading' may
be subject of a motion to strike....

Motions, briefs or

memoranda, objections, or affidavits may not be attacked
by the motion to strike.").

Rather, the court will

consider Daewon’s motion to strike as notice of its
objections to Todd’s evidentiary submissions.
Daewon objects that Todd’s exhibits fail to meet the
requirements for admissibility in the Federal Rules of
Evidence and “were prepared by an unnamed, unidentified
person.”

Def. Mot. (Doc. No. 20) at ¶ 4.

2

This court

does not share its concerns.
use

payroll

figures

The three exhibits at issue

from

Todd’s

time

sheets

and

demonstrate how the rounding practices resulted in the
under-compensation
problem

Todd

accepting

alleges.

these

exhibits

692

F.2d

(“admissibility
within

the

of

1335,

1338

demonstrative

discretion

of

the

court

as

has

no

demonstrative

See Bury v. Marietta

aids--and helpful ones, at that.
Dodge,

The

(11th

Cir.

evidence

trial

is

1982)
largely

court”).

Todd

clarifies in his reply to the motion to strike that his
attorneys prepared the charts.
Moreover, the technical requirements of the Federal
Rules of Evidence need not be met at this early stage.
“The

general

exhibits

may

rule
be

in

this

considered

Circuit
for

is

that

purposes

of

parties’
pretrial

rulings so long as they can be reduced to admissible form
at trial.”

Longcrier v. HL-A Co., Inc., 595 F.Supp. 2d

1218, 1223 (S.D. Ala. 2008) (Steele, J.) (citing Rowell
v. BellSouth Corp., 433 F.3d 794, 800 (11th Cir. 2005)

3

and U.S. Aviation Underwriters, Inc. v. Yellow Freight
System, Inc., 296 F.Supp. 2d 1322, 1327 n.2 (S.D. Ala.
2003)

(Steele,

J.)).

The

court

finds

that

the

demonstrative exhibits Todd submits are readily reducible
to admissible form.

As such, Daewon’s objections to this

evidence are overruled.
***
Accordingly, it is ORDERED that defendant Daewon
America, Inc.’s motion to strike (Doc. No. 20) is denied.
DONE, this the 13th day of February, 2013.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE