Allen et al v. Uncle John Holdings, LLC et al

Filing 62

Order: The 52 MOTION for Summary Judgment is GRANTED in favor of Momentum Engineering, Inc. and Momentum GOM, Inc. as to the Claim for Unpaid Overtime (Count II). Accordingly, Count II is dismissed as to these Defendants; The motion for summary judgment is GRANTED in favor of Momentum Engineering, Inc. as to the Claim for Earned Wages (Count I) and the Claim for Breach of Contract and Loss of Earnings (Count III); and the Plaintiff's 58 MOTION to Strike is DENIED. Signed by Chief Judge Kristi K. DuBose on 05/02/2019. (nah)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
JARED ALLEN, et al.,

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Plaintiffs,
vs.
UNCLE JOHN HOLDINGS, LLC, et al.,
Defendants.

CIVIL ACTION NO. 17-00222-KD-MU

ORDER
This action is before the Court on the motion for summary judgment filed by Defendants
Momentum Engineering, Inc. and Momentum GOM, Inc.; Plaintiffs Jared Allen, Justin Allen,
James Hayes, Jason Keezer, Michael Lunsford, and Sanjay Ramachandran response; and
Defendants’ reply; and Plaintiffs’ motion to strike and Defendants’ reply (docs. 52, 56-59).
Upon consideration and for the reasons set forth herein:
1) The motion for summary judgment is GRANTED in favor of Momentum
Engineering, Inc. and Momentum GOM, Inc. as to the Claim for Unpaid Overtime
(Count II). Accordingly, Count II is dismissed as to these Defendants;
2) The motion for summary judgment is GRANTED in favor of Momentum
Engineering, Inc. as to the Claim for Earned Wages (Count I) and the Claim for
Breach of Contract and Loss of Earnings (Count III); and
3) Plaintiffs’ motion to strike is DENIED.

I. Count I - Motion for summary judgment as to Plaintiffs’ claims for wages earned
A. Factual and procedural background1

1

“Although the ‘facts,’ as accepted for purposes of summary judgment, may not be the
actual facts of the case, ‘our analysis ... must begin with a description of the facts in the light most
favorable to the plaintiff, and our decision must accept those facts.” Feliciano v. City of Miami
(Continued)

The M/V Uncle John was purchased at bankruptcy auction by James Larsen. He paid the
deposit and then, as the sole member, formed Uncle John Holding LLC. Title to the vessel was
transferred to the LLC. Another investor, Brian Chang, financed the balance of the purchase price.
Thirty days later, a Chang entity became the 100 per cent owner/member of Uncle John Holding
LLC (doc. 52-1, p. 4-9, Larsen deposition).
On December 7, 2015, Larsen and Momentum Far East Pte Ltd entered into an agreement
with Uncle John Holding whereby Larsen and Momentum Far East, “collectively known as
‘Momentum’” were “appointed as broker for Uncle John to facilitate the successful charterparty or
sale of the vessel” (doc. 52-1, p. 7, Larsen deposition; doc. 52-2, p. 3, Contract). Per the December
agreement, “Momentum” would receive 50% of the profits of the sale or transaction of a
charterparty, less expenses and disbursements (doc. 52-2, pp. 2, 5). This arrangement contemplated
that Uncle John Holding, LLC would incur expenses and make disbursements on behalf of the
vessel. Id.
The December agreement also listed Momentum Engineering, LLC as a party, but the name
is stricken on the copy filed with the court. And, when Larsen signed the December agreement, it
appears he struck Momentum Engineering, LLC off the signature page, indicating that he was not
signing on behalf of Momentum Engineering, LLC. Larsen and another individual, Abdullah, were
co-members of Momentum Engineering. According to Larsen, Abdullah and Momentum
Engineering were not involved in the purchase of the vessel or the work performed on the vessel
(doc 52, p. 4; doc. 57-1, p. 2-3).

Beach, 707 F.3d 1244, 1247 (11th Cir. 2013) (citation omitted).

2

Larsen formed Momentum GOM, Inc. in 2016 to deal specifically with the M/V Uncle John
and then substituted it for Momentum Far East as a party to the December agreement (doc. 52-1, p.
2, Larsen deposition).2 Larsen is the sole shareholder of Momentum GOM (Id.).
In the December agreement, the parties agreed to certain procedures regarding work or services to
be carried out on the vessel (doc. 52-2, p. 3). As part of the work to get the vessel in working
condition, the saturation dive system needed to be certified. Larsen acted as the “vessel owner’s
representative in relation to work done on the SAT system….” (doc. 52-1, p. 10). To accomplish
this task, Larsen’s company Momentum GOM entered into a consultant contract with William
Bishop (doc. 52-1, p. 2).
Bishop then hired the Plaintiffs and supervised the work on the saturation dive system on the
vessel (doc. 52, p. 4; doc. 52-1, p. 2, 12, Larsen deposition). Bishop also assisted the Plaintiffs in
submitting an invoice for the work performed (doc. 57-2, p. 3, Bishop deposition). These invoices
were were addressed to “Momentum Engineering” (doc. 56-1, Invoices).
Momentum GOM and Larsen do not dispute that the Plaintiffs worked on the saturation dive
system or the amount of money owed to the Plaintiffs (doc. 52, p. 4). However, Larsen testified at
deposition that he expected Uncle John Holding, as the owner of the vessel, to pay Bishop and the
Plaintiffs for their work (doc. 52-1, p. 12).
B. Conclusions of Law
1. Standard of Review

2

The December agreement states that the “Parties agree that a nominated entity legally
associated to [James C. Larsen] may replace MEL and MFEPT in brokering a sale or charter for the
Vessel and that it will fulfil all terms and obligations thereunder. Such entity must be made known
to Uncle John prior to contract execution for a sale or charter of the Vessel in writing.” (doc. 52-2,
p. 2).

3

“The court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a) (Dec. 2010). Defendants, as the parties seeking summary judgment bear “the initial
burden to show the district court, by reference to materials on file, that there are no genuine issues
of material fact that should be decided at trial.” Clark v. Coats & Clark, Inc., 929 F.2d 604, 608
(11th Cir. 1991) (the party seeking summary judgment “always bears the initial responsibility of
informing the district court of the basis for its motion, and identifying those portions of ‘the
pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact.”)
(quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553 (1986)). In deciding
whether the Defendants have met their initial burden, the Court must review the record and draw all
reasonable inferences therefrom in a light most favorable to Plaintiffs, as the non-moving parties.
See Whatley v. CNA Ins. Co., 189 F.3d 1310, 1313 (11th Cir. 1999).
Once Defendants meet this responsibility, the burden shifts to Plaintiffs, as the non-movants,
to show the existence of a genuine issue of material fact that would preclude summary judgment.
See Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). “In
reviewing whether the [non-movants have met their] burden, the court must stop short of weighing
the evidence and making credibility determination of the truth of the matter. Instead, the evidence of
the non-movants is to be believed, and all justifiable inferences are to be drawn in [their] favor.”
Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 999 (11th Cir. 1992) (citing Anderson v. Liberty
Lobby, 477 U.S. 242, 255, 106 S. Ct. 2505 (1986) ((bracketed text added). However, Defendants
would be entitled to summary judgment if Plaintiffs fail “to make a sufficient showing on an
essential element of [their] case with respect to which [they have] the burden of proof.’” In re
Walker, 48 F. 3d 1161, 1163 (11th Cir. 1995) (quoting Celotex Corp., 477 U.S. at 323, 106 S. Ct. at
4

2552) (bracketed text added). Overall, the Court must “resolve all issues of material fact in favor of
the [Plaintiffs], and then determine the legal question of whether [Defendants are] entitled to
judgment as a matter of law under that version of the facts.” McDowell v. Brown, 392 F.3d 1283,
1288 (11th Cir. 2004) (citing Durruthy v. Pastor, 351 F.3d 1080, 1084 (11th Cir. 2003)) (bracketed
text added).
The mere existence of any factual dispute will not automatically require denial of a motion
for summary judgment; rather, only factual disputes that are material preclude entry of summary
judgment. Lofton v. Secretary of Dept. of Children and Family Services, 358 F.3d 804, 809 (11th
Cir. 2004). “An issue of fact is material if it is a legal element of the claim under the applicable
substantive law which might affect the outcome of the case. It is genuine if the record taken as a
whole could lead a rational trier of fact to find for the nonmoving party.” Reeves v. C.H. Robinson
Worldwide, Inc., 594 F.3d 798, 807 (11th Cir. 2010) (citation omitted).
2. Analysis
In Count I, Plaintiffs bring their admiralty and maritime claims for earned wages against
Uncle John Holding, Blue Capital PTE Ltd, Momentum Engineering, 3 and Momentum GOM.4
Momentum Engineering moves for summary judgment as to Count I.
Momentum Engineering argues that it should be dismissed “because it has no involvement
whatsoever with the work on the” M/V Uncle John” and that “[t]here is no evidence tying” it to the
work performed by the Plaintiffs (doc. 52, p. 10). Momentum Engineering points out that it was not

3

Momentum Engineering, Inc. notes that the correct title of the entity is Momentum
Engineering, LLC (doc. 52, p. 1).
4

Defendants assert that Plaintiff Bishop, the Marine and Diving Superintendent, claims only
breach of contract against Momentum GOM and that this motion for summary judgment does not
address his claim (doc. 22, p. 1, n. 2).

5

a party to the December agreement between Larsen/Momentum GOM and Uncle John Holding.
Nor was Momentum Engineering a party to the consultant contract with Bishop.
Plaintiffs argue that Momentum Engineering has failed to provide sufficient evidence to
establish the absence of a genuine issue of fact as to its possible liability for the unpaid wages.
Plaintiffs state that Larsen’s testimony that Momentum Engineering was not involved in the
purchase of the vessel, even if true, “does not foreclose all possible ways that [Momentum
Engineering] could be responsible for the wages” (doc. 56, p. 3). In support, Plaintiffs rely on the
December agreement and the invoices submitted by the Plaintiffs for work performed on the vessel.
First, Plaintiffs argue that the December agreement between Larsen, Momentum GOM and
Uncle John Holding creates an issue of fact. Plaintiffs point out that
While it appears that someone struck through some references to [Momentum
Engineering] in the contract, there is no evidence who made those marks, when they
were made or that there was any mutual agreement to alter the terms of the printed
contract. In fact, if one compares the signatures on the last page of the contract to the
initials where reference to [Momentum Engineering] has been stricken, it appears
that no one from Uncle John, LLC acknowledged the strike marks and only Mr.
Larsen initialed his assent to the changes. The strikes could have been made by
Larsen after the subject deal fell apart, well after the formation of the contract in
2015. If the fact finder were to determine that this is true, then [Momentum
Engineering] was a representative of the Uncle John to the same extent Larsen
admits he was as a result of the contract.
(Doc. 56, p. 3).
The Plaintiffs merely speculate that the strikes were made after the December agreement
was signed; they put forth no proof of the same. Moreover, whether Momentum Engineering was a
possible beneficiary and/or representative under the December agreement appears to be irrelevant.
The issue is whether Momentum Engineering is liable to Plaintiffs for unpaid wages. There is no
evidence that Momentum Engineering entered into any contract with Plaintiffs or that Momentum
Engineering ever authorized any other person or entity to enter into any contract with Plaintiffs.

6

The evidence is that Momentum GOM entered into the December agreement that provided for work
to be performed on the vessel’s SAT system.
Additionally, Plaintiffs point out that their work invoices were sent by their supervisor
Bishop to Larsen (doc. 56-2, p. 2, Bishop deposition) and that the invoices were issued to
Momentum Engineering (doc. 56-1, invoices). Plaintiffs assert, without citing any evidence, that
Larsen and Momentum Engineering did not object to the billing and or inform anyone that the
wrong company was billed. Plaintiffs also argue that they expected payment from Momentum
Engineering, but provide no basis for this assertion.
Plaintiffs’ four and half page response which cites to no evidence is simply insufficient to
meet their burden to establish a genuine issue of material fact that Momentum Engineering is
responsible for Plaintiffs’ unpaid wages. Accordingly Momentum Engineering’s motion is
GRANTED.5

II. Stipulation for dismissal of Count II
In Count II, Plaintiffs Allen, Allen, Hayes, Keezer, Lunsford, and Ramachandran allege
claims for unpaid overtime under the Fair Labor Standards Act (doc. 1, p. 5). Defendant
Momentum Engineering now moves for summary judgment on basis that it was not involved with
the work on the M/V Uncle John and therefore was not an employer under the FLSA (doc. 52, p.
10). Defendant Momentum GOM moves on basis that Plaintiffs are independent contractors who
do not qualify as employees under the FLSA (doc. 52, p. 10).
5

Momentum Engineering indicates that it is not named in Count III. However, Count III
alleges “a cause of action against the Defendants” (doc. 1, p. 6). To the extent Momentum
Engineering is included in Count III, the Court grants summary judgment in favor of Momentum
Engineering because there is no evidence to hold Momentum Engineering liable for the alleged
breach of contract between Momentum GOM and Bishop.

7

In response, Plaintiffs stipulate to dismissal of Count II (doc. 56, p. 1).
The stipulation was made in response to a motion for summary judgment filed by two of
four Defendants. Thus, Plaintiffs’ stipulation is unclear as to whether they stipulate or concede to
dismissal of Count II as to all Defendants or only the two movants herein. However, in view of
their stated intent to dismiss their FLSA claims, 6 at least as to the Momentum Defendants, partial
summary judgment is GRANTED in favor of Momentum Engineering and Momentum GOM with
regard to Count II.

III. Motion to strike
Plaintiffs move the Court to strike Defendants’ Exhibits B and C because they were not
filed with the motion for summary judgment, but instead filed with the reply. Exhibit B consists of
James Larsen’s deposition pages 54-61 and Exhibit C consists of William Bishop’s deposition
pages 30-33, 102-109, and 118-121. Plaintiffs point out that Civil Local Rules 77 and 56(a)8
“require that all evidence relied upon by a movant be filed with its motion” (doc. 58, p. 1).
Plaintiffs also “pointed out” Defendants failure in their response (doc. 56, p. 3, n. 1).

6

In this circuit, plaintiffs generally may not stipulate to the dismissal of a count in a
complaint. Instead, plaintiffs should amend the complaint and eliminate the count. Campbell v.
Altec Indus., Inc., 605 F.3d 839, 841, n.1 (11th Cir. 2010) (“A plaintiff wishing to eliminate
particular claims or issues from the action should amend the complaint under Rule 15(a) rather than
dismiss under Rule 41(a)[]”).
7

“(b) Movants Supporting Materials. . . . Absent Court order otherwise, any brief, exhibit,
or other supporting paper must be filed contemporaneously with the motion.” S.D. Ala. Civil L.R.
7(b).
8

“(a) Movant’s Supporting Materials. The movant must file a brief that includes: (1) all
facts relied upon, each supported by a specific, pinpoint citation to the record; and (2) argument
supported by legal authority as appropriate. The movant must also file all evidence relied upon. . . .”
S.D. Ala. Civil L.R. 56(a).

8

Defendants argue that the motion to strike should be denied. They point out that the
deposition pages were cited in their motion for summary judgment but were not submitted due to
clerical error. Alternatively, Defendants move the Court for leave to file Exhibits B and C out of
time (doc. 59).
Rule 12(f) of the Federal Rules of Civil Procedure is captioned “Motion to Strike”. The
Rule states as follows:
(f) Motion to Strike. The court may strike from a pleading an insufficient defense
or any redundant, immaterial, impertinent, or scandalous matter. The court may
act:
(1) on its own; or
(2) on motion made by a party either before responding to the pleading or,
if a response is not allowed, within 21 days after being served with the
pleading.
Fed. R. Civ. P. 12(f).
Arguably, a motion to strike is not the correct procedure. A motion for summary judgment
and reply are not “pleadings” and the deposition pages Plaintiffs seek to strike are not “an
insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” (Id.).
The Court may construe the motion as a motion to exclude evidence from the Court’s
consideration based on untimely submission to the Court. Rule 37(c)(1) applies when exhibits were
untimely disclosed after the close of discovery. In that circumstance, the exhibits may be allowed if
the proponent can show that the “failure was substantially justified or is harmless.” Fed. R. Civ. P.
37(c)(1). However, this is not exactly the circumstance where proffered evidence, i.e., the
deposition testimony on the omitted pages, was not disclosed prior to the close of discovery.
Instead, Plaintiffs’ counsel attended the depositions and apparently knew the contents or had access
to the contents of the omitted deposition pages (docs. 57-1, Larsen deposition page 57, ll. 23 “Q.
(By Mr. Fuquay)”; doc. 57-2, Bishop deposition page 30, ll. 1 “Mr. Fuquay: After it came out …”).
9

Importantly, in their response, Plaintiffs pointed out the absence of only one deposition
page, in a footnote, as follows:
[Momentum Engineering] has failed to meet its initial burden of putting on
evidence to establish an absence of genuine fact issues. The only evidence cited
by [Momentum Engineering] is James Larsen’s testimony cited as ‘Ex. A’ on p.
57.1 The testimony found at the cited pages in Larsen’s deposition involves
[Momentum Engineering] not being involved in the purchase of the Uncle John.
Even if that is true, it does not foreclose all possible ways that [Momentum
Engineering] could be responsible for the wages that even Defendants agree are
owed to Plaintiffs.
1

The passage referenced by Defendants is not actually part of Ex. A.

(Doc. 56, p. 2-3). Since Defendants’ omission of the cited deposition pages appears to be nothing
more than a clerical error, which did not prejudice or harm the Plaintiffs since their counsel knew
the content of the deposition testimony, Plaintiffs’ motionto strike is DENIED.

V. Conclusion
Upon consideration, and for the reasons set forth herein,
1) The motion for summary judgment is GRANTED in favor of Momentum
Engineering, Inc. and Momentum GOM, Inc. as to the Claim for Unpaid
Overtime (Count II). Accordingly, Count II is dismissed as to these Defendants;
2) The motion for summary judgment is GRANTED in favor of Momentum
Engineering, Inc. as to the Claim for Earned Wages (Count I) and the Claim for
Breach of Contract and Loss of Earnings (Count III); and
3) Plaintiffs’ motion to strike is DENIED.

DONE and ORDERED this the 2nd day of May 2019.
/s/ Kristi K. DuBose
KRISTI K. DuBOSE
CHIEF UNITED STATES DISTRICT JUDGE

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