Maclin et al v. Montgomery and Sons Construction Inc et al

Filing 113

ORDER denying 100] Motion for Default Judgment with a qualification. The qualification: the Court will consider a spoliation instruction after it hears all the testimony, and sees all the witnesses, either at trial or an evidentiary hearing before trial. The Court declines to order additional notice by radio, television, and other media. Signed by Judge D. P. Marshall Jr. on 8/8/13. (kpr)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
STEPHEN MACLIN; RUBEN TOBIN;
DUSTIN ROBINSON; and GERARD
JOHNSON, all individually and on
behalf of others similarly situated

v.

PLAINTIFFS

No. 4:12-cv-5-DPM

MONTGOMERY AND SONS
CONSTRUCTION, INC. and JOHN
MONTGOMERY, individually and
as owner/manager of Montgomery
and Sons Construction, Inc.

DEFENDANTS

ORDER
Discovery problems still mire this case. The Plaintiffs have asked the
Court to enter a default judgment as a sanction. They say John Montgomery,
acting in bad faith, destroyed handwritten timesheets showing the hours the
employees worked. This allegedly happened in December 2011, before the
start of this lawsuit in January 2012. The Plaintiffs also request relief because
some discovery, mostly 1099s and W2s, is still outstanding.

John

Montgomery's former secretary, Shelly Deardorff, has testified by affidavit
that he asked her to forge some tax forms, contracts, and timesheets after the
Court-ordered discovery. Montgomery denies any wrongful conduct. Last,
the Plaintiffs ask for more extraordinary notice to potential plaintiffs.

1. The motion, NQ 100, is denied with a qualification. The question isn't
whether Montgomery destroyed the timesheets; he admits that his managers
threw them away. The fighting issue is why. Plaintiffs need to show that
Montgomery acted in bad faith. Hallmark Cards, Inc. v. Murley, 703 F.3d 456,
460 (8th Cir. 2013). He says that, in the normal course of business, the sheets
were trashed after the information they contained was relayed to the home
office. NQ 106 at4. Maclin says, and Montgomery disputes, that Montgomery
knew about a possible Arkansas Labor Department investigation, and
destroyed the documents to cover his tracks. Compare NQ 101-3 with NQ 106-1

at 32.
The Plaintiffs haven't yet shown bad faith. Maclin's affidavit, on which
Plaintiffs rely, is too murky to be conclusive. Maclin is an interested party, of
course- the lead plaintiff. But at this point, his testimony by affidavit lacks
sufficient specificity, important context that will be provided by the
supervisors' testimony, and exposure to cross examination. First, Maclin
doesn't remember exactly who told him that Montgomery was destroying
timesheets: "One of Montgomery's supervisors, I believe Kenny Watkins,
told me that Montgomery destroyed the timesheets so that I could not prove
that I had not been paid correctly." NQ 101-3. Any hearsay problem probably
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evaporates, as Plaintiffs say. FED. R. EVID. 801(d)(2)(D). The uncertainty
about the messenger's identity though, casts doubt on the message's accuracy.
Second, what the supervisors, particularly Watkins, say under oath is
important. Finally, this is a situation where cross examination is essential. It
will help reveal both Montgomery's intentions and the strength of Maclin's
memory.
Considering all of the material circumstances, default is too harsh a
sanction at this point. Comiskey v. JFTJ Corp., 989 F.2d 1007, 1009 (8th Cir.
1993). The qualification: the Court will consider a spoliation instruction after
it hears all this testimony, and sees these all these witnesses, either at trial or
an evidentiary hearing before trial. Stevenson v. Union Pacific Railroad Co., 354
F.3d 739, 745-46 (8th Cir. 2004).
2. Discovery ends on 30 August 2013. NQ 110. Plaintiffs say that many
documents are still missing. NQ 101 at 4-5. Perhaps more will turn up. The
parties agree, though, that Montgomery can't produce what it does not have.
If the Montgomery entities have not requested copies of all relevant tax

documents from the IRS, and given authorization for Plaintiffs to do so
independently, they must do so immediately. The Court knows this is a
lengthy and uncertain process, but has no other suggestion on missing
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returns, W2s, and 1099s. Joint discovery status report with specifics due 6
September 2013.
3. Deardorff says that she was fired because she refused to forge tax
documents and timesheets for the company.

She didn't destroy any

documents. She didn't forge any. And she doesn't say that Montgomery ever
destroyed or forged documents. NQ 101-2. Like the missing documents,
Deardorff's testimony will be for the jury to consider in assessing the state of
Montgomery's records, Montgomery's defenses, and Plaintiffs' claims. The
Court will also weigh her testimony in deciding whether to give a spoliation
instruction.
4. Since the Court ordered notice by publication in local Spanishlanguage newspapers, NQ 97, three former Montgomery employees have come
forward. The special publication alerted only one person. Considering all the
material circumstances, the Court declines to order additional notice by radio,
television, and other media.
So Ordered.

fJ!?4Md.~~-

D.P. Marshall Jr.
United States District Judge
8 August 2013
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