Nixon et al v. Costner Excavating Inc et al

Filing 68

ORDER denying 36 Motion for Partial Summary Judgment; granting 52 Motion for Leave to File and Amended Answer, which should be filed by 5:00 p.m., Thursday, April 26, 2012; and denying 57 Motion to defer ruling. Signed by Judge Billy Roy Wilson on 4/24/12. (kpr)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
CORY NIXON, et al.,
EACH INDIVIDUALLY and on BEHALF
of OTHERS SIMILARLY SITUATED

vs

PLAINTIFFS

4:11-CV-00578 BRW

COSTNER EXCAVATING, INC.,
d/b/a COSTNER GAS AND OIL FIELD SERVICES,
and RHETT COSTNER, individually and
as Owner/Manager of Costner Excavating

DEFENDANTS

ORDER
Pending is Plaintiffs’ Motion for Partial Summary Judgment (Doc. No. 36)1, Defendants’
Motion for Leave to File an Amended Answer (Doc. No. 52)2, and Defendants’ Motion to Defer
Ruling on Plaintiffs’ Motion for Partial Summary Judgment (Doc. No. 57).3
1.

Defendants’ Motion for Leave to File an Amended Answer.

Under Federal Rule of Civil Procedure 15(a)(2), “[t]he court should freely give leave [to
amend] when justice so requires.” Plaintiffs argue that the Motion is brought “in bad faith, for
purposes of delay, and will result in prejudice to Plaintiffs.”4 I disagree. Defendants’ Motion for
Leave to File an Amended Answer is GRANTED. Defendants should file the Amended Answer
that is attached as Exhibit 1 to their Motion by 5:00 p.m., Thursday, April 26, 2012.

1

Defendants filed a response (Doc. No. 53) and Plaintiffs replied (Doc. No. 67).

2

Plaintiffs filed an objection (Doc. No. 62).

3

Plaintiffs filed a response (Doc. No. 63).

4

Doc. No. 62.
1

2.

Plaintiffs’ Motion for Partial Summary Judgment.

Plaintiffs contend that “no genuine triable issue of material fact exists as to Plaintiffs’
non-exempt status under the Fair Labor Standards Act (‘FLSA’), Defendants’ liability under the
FLSA, and the willfulness of Defendants’ violations of the FLSA.”1 Defendants disagree, and
argue that Plaintiffs cannot establish that Defendant Costner is “an enterprise engaged in
commerce or the production of goods for commerce” for the purposes of the FLSA.2 They also
contend that even if Defendant Costner was engaged in interstate commerce, Plaintiffs are
exempt from the FLSA.3 Defendants also ask me to defer a ruling on Plaintiffs’ Motion for
Partial Summary Judgment pending completion of discovery in this case.4
On April 6, 2012, I conditionally certified this case as a collective action.5 I provided a
deadline of 60 days -- June 5, 2012 -- for the putative plaintiffs to opt-in to the collective action.6
Based on this, I find that Plaintiffs’ Motion for Partial Summary Judgment is premature.7 In
Dege v. Hutchinson Technology, Inc., the court found that a motion for summary judgment was

1

Doc. No. 36.

2

Doc. No. 53.

3

Id.

4

Doc. No. 57.

5

Doc. No. 45.

6

Id.

7

See Dege v. Hutchinson Technology, Inc., No. 06-3754, 2007 WL 3275111, at *3 (D.
Minn. Nov. 2, 2007).
2

premature and that “a determination on the merits would provide an unfair advantage to potential
plaintiffs who may be waiting to determine whether to opt-in to the lawsuit.”8
The situation in this case is similar to that in Dege. At this stage of the litigation,
discovery is not complete, the class status is still unresolved, and the deadline to opt-in has not
expired. Certainly a decision in Plaintiffs’ favor would encourage more putative plaintiffs to
opt-in. Furthermore, Defendants may well seek to de-certify the collective action after discovery
is complete. Therefore, Plaintiffs’ Motion for Partial Summary Judgment (Doc. No. 36) is
DENIED without prejudice.
CONCLUSION
Based on my findings of fact and conclusions of law above, Plaintiffs’ Motion for Partial
Summary Judgment (Doc. No. 36) is DENIED without prejudice; Defendants’ Motion for Leave
to File an Amended Answer (Doc. No. 52) is GRANTED; and Defendants’ Motion to Defer
Ruling (Doc. No. 57) is MOOT. The Court will issue a new final scheduling order.
IT IS SO ORDERED this 24th day of April, 2012.

/s/Billy Roy Wilson
UNITED STATES DISTRICT JUDGE

8

Id. at *3; Cf Paxton v. Union Nat’l Bank, 688 F.2d 552, 558 (8th Cir. 1982) (discussing
that it is “rarely appropriate” to certify a class after making a decision on the merits of the case);
Owens v. Hellmuth & Johnson, PLLC, 550 F. Supp. 2d 1060, 1070 (D. Minn. 2008) (discussing
the inherent unfairness of allowing a plaintiff to seek a ruling on the merits before seeking class
certification thereby placing the potential class members in a “win-win situation” because “ if the
ruling goes against the named plaintiff, then others can opt out of the class and not be bound by
that adverse decision, and if the ruling is favorable, then others can opt in to the class knowing
that the defendant's liability has already been established.”).
3