Mondragon et al v. Fernandez

Filing 102

ORDER DENYING PLAINTIFF'S RULE 50(B) MOTION FOR JUDGMENT AS A MATTER OF LAW (rmwlc2, COURT STAFF) (Filed on 7/3/2012)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

United States District Court
For the Northern District of California

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FLORENCIA MONDRAGON,

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Plaintiff,
v.
JESUS FERNANDEZ, et al.,

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Defendant.

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Case No.: C 08-05722 RMW
ORDER DENYING PLAINTIFF’S
RULE 50(b) MOTION FOR JUDGMENT
AS A MATTER OF LAW
[Re Docket No. 100]

Florencia Mondragon (“plaintiff”), after conclusion of a trial by jury, moves for judgment as

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a matter of law under Fed. R. Civ. P. 50(b). For the reasons set forth below, the court denies the

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motion.

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I. BACKGROUND
Plaintiff filed this wage and hour case on December 22, 2008, asserting claims under the Fair

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Labor Standards Act (FLSA) and the California Labor Code (CLC) against her former employer,

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Jesus Fernandez (“defendant”). The case went to trial on March 27, 2012. During the presentation

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of defendant’s case, plaintiff’s counsel engaged in the following exchange with the court:

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Mr. Wang: Well, It’s Okay. Just in case—there’s one issue. Do we have
time to move for summary judgment after defense rests?
The court: After—if you want to reserve a motion, you can reserve it. I
don’t want to hold the jury up, but if you want to make it and argue it later
you can.
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Case No.: C 08-05722 RMW
ORDER DENYING PLAINTIFF’S RULE 50(b) MOTION FOR JUDGMENT AS A MATTER OF LAW

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Mr. Wang: Okay. Because I think defense failed to make the exemption
questions.

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The court: They haven’t finished their case yet.

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Mr. Wang: Yeah, I’m prepared for that, Your Honor.

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See Dkt. No. 100 at 6.
Plaintiff did not raise her motion for “summary judgment” at any other point during the trial.

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The jury found that plaintiff was an exempt employee under the FLSA, but deadlocked on the

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question of whether she was an exempt employee under California law. Plaintiff subsequently

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brought this motion for judgment as matter of law under Federal Rule of Civil Procedure 50(b),

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asserting that there is a legally insufficient evidentiary basis for a reasonable jury to determine that

United States District Court
For the Northern District of California

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she is an exempt employee under the CLC.

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II. DISCUSSION

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1. Plaintiff is Procedurally Barred From Asserting a Rule 50(b) Motion for Judgment as a
Matter of Law Because She Did Not Properly Preserve the Motion

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In order to renew a motion for judgment as a matter of law after trial under Rule 50(b), a
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party must first challenge the sufficiency of the evidence “before the case is submitted to the jury.”
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Fed. R. Civ. P. 50(a); see also Humetrix v. Gemplus, 268 F.3d 910, 923 (9th Cir. 2001). A motion
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under Rule 50(a) must “specify the judgment sought and the law and facts that entitle the movant to
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the judgment.” Fed. R. Civ. P. 50(a). Courts strictly construe the requirement that a Rule 50(a)
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motion be made at the close of evidence. See Humetrix, 268 F.3d at 923. This requirement “serves
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the important purpose of alerting the opposing party to the alleged insufficiency of the evidence at a
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point in the trial where the party may still cure the defect by presenting further evidence.” Farley
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Transp. Co. v. Santa Fe Trail Transp. Co., 786 F.2d 1342, 1346 (9th Cir. 1985).
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This case closely resembles Humetrix. In that case, the defendants’ attorneys paused during
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the presentation of their own case and engaged in the following colloquy with the court:
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Mr. Devereaux: I just wanted to confirm that the Rule 50 motions the
court will hear after the case has been submitted.
The court: I will hear the Rule 50 motions after the case. It’s been
preserved.
Mr. Deutsch [Counsel for Inovaction]: And renewed?
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Case No.: C 08-05722 RMW
ORDER DENYING PLAINTIFF’S RULE 50(b) MOTION FOR JUDGMENT AS A MATTER OF LAW

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The court: And renewed.
Humetrix, 268 F.3d at 923.

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Defendants then failed to move for judgment as a matter of law under Rule 50(a) at the close

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of evidence. On appeal, the Ninth Circuit found that the above exchange did not preserve a renewed

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motion for judgment as a matter of law under Rule 50(b). As the court explained, “asking if one will

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have the opportunity to make a motion and making a motion are two different things.” Id. at 923.

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In this case, plaintiff concedes that she did not submit a timely motion under Rule 50(a).

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Nevertheless, she requests the opportunity to “renew” a motion for judgment as a matter of law,

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claiming that her counsel’s exchange with the court during the presentation of defendant’s case-in-

United States District Court
For the Northern District of California

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chief should be construed as a motion under Rule 50(a). However, as plaintiff’s counsel clearly

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asked if he could move for judgment as a matter of law “once the defense rested,” his question did

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not put defendant on notice of the alleged inadequacy in his case at a point in the trial when he could

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“still cure the defect by presenting further evidence.” Farley, 786 F.2d at 1346. Nor did plaintiff’s

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cryptic reference to “exemption questions” satisfy Rule 50(a)’s requirement to “specify the judgment

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sought and the law and facts that entitle the movant to the judgment.” Fed. R. Civ. P. Rule 50(a).

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Thus, under Humetrix, plaintiff’s motion is procedurally barred.

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Plaintiff’s reliance on Reeves v. Teuscher, 881 F.2d 1495 (9th Cir. 1989) is misplaced. In

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Reeves, the Ninth Circuit expressly found that the moving parties “attempted to move for a directed

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verdict after all the evidence was in” but that “the court interrupted them and told them to renew

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their motion after the verdict.” Id. at 1498. By contrast, in this case, the court specifically stated that

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if plaintiff wanted to reserve her motion, she must raise it after the defense rested, which she failed

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to do. Moreover, the trial court in Reeves invited the moving parties to “renew” their motion after

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the verdict, demonstrating that the judge accepted the pre-verdict motion. Id. Where the court takes

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a motion for judgment as a matter of law “under advisement” during the trial, it “maintains the

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motion as a continuing objection to the sufficiency of the evidence, provides notice to the opposing

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party of the challenge, and constitutes a judicial indication that renewal of the motion is not

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necessary to preserve the moving party’s rights.” Farley, 786 F.2d at 1346-47. No such

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Case No.: C 08-05722 RMW
ORDER DENYING PLAINTIFF’S RULE 50(b) MOTION FOR JUDGMENT AS A MATTER OF LAW

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acknowledgment by the court occurred here. Accordingly, the court denies plaintiff’s motion under

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Rule 50(b).

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2. Plaintiff is Not a Nonexempt Employee as a Matter of Law
Even if the court considers plaintiff’s motion on the merits, it is denied. Plaintiff asserts that

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based on the evidence, no reasonable jury could have found that she was an exempt employee as

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defined by California Labor Code Section 515 and Title 8 of the California Code of Regulations,

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Section 11050. To qualify for an exemption, California law requires that an employee serve in an

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administrative, executive or professional capacity, and perform duties commensurate with his or her

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position at least 50% of the time. See Cal. Lab. Code § 515; Campbell v. PricewaterhouseCoopers,

United States District Court
For the Northern District of California

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LLP, 602 F. Supp. 2d 1163, 1182 (E.D. Cal. 2009). To determine if an employee is primarily

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engaged in exempt duties such that he or she meets the 50% threshold, the court must “inquir[e] into

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the realistic requirements of the job,” considering not only how the employee actually spends his or

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her time, but also the employer’s expectations. Ramirez v. Yosemite Water Co., Inc., 20 Cal. 4th

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785, 802 (Cal. 1999) (emphasis is original). The defendant bears the burden of proving that the

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employee is exempt. Campbell, 602 F. Supp. 2d at 1171 (citing Ramirez, 20 Cal. 4th at 794-95).

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In the instant case, plaintiff claims that the evidence produced at trial showed that she spent

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30.5 hours per week engaged in managerial duties, including: hiring employees, processing

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employee payrolls, setting up cash registers, ordering inventory, making employee schedules, and

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supervising employees during their shifts. Dkt. No. 98 at 3-8. Because plaintiff contends that she

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worked 72 hours per week in total, this falls shy of the 36 hours per week required for her to meet

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the exemption under California law. According to plaintiff, she spent her remaining hours

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performing the non-exempt “duties of a bartender.” Dkt. No. 98 at 2. However, a reasonable jury

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could conclude that during the times when plaintiff worked as a bartender, she simultaneously

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continued to operate in her managerial role. Cf. 29 CFR § 541.106(b) (“An assistant manager in a

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retail establishment may perform work such as serving customers, cooking food, stocking shelves

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and cleaning the establishment, but performance of such nonexempt work does not preclude the

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exemption if the assistant manager's primary duty is management.”); see also Bell v. Farmers Ins.

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Exch., 87 Cal. App. 4th 805, 814-15 (Cal. Ct. App. 2001) (“Regulatory history supports the use of
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Case No.: C 08-05722 RMW
ORDER DENYING PLAINTIFF’S RULE 50(b) MOTION FOR JUDGMENT AS A MATTER OF LAW

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federal authorities as an aid to interpretation of the administrative exemption of title 8, section

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11040, subdivision 1(A).”). 1 This is particularly plausible given the evidence that she was often the

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only person working at the establishment, and therefore had to fulfill multiple duties at once. Dkt.

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No. 93 at 49-50, 70.

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At oral argument, plaintiff encouraged the court to view her as a “straw boss” hired to

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perform bartending duties, despite her designation as a manager. 2 However, whether plaintiff was

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hired as a manager with occasional bartending duties or vice versa is a question of fact. Because

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there is sufficient evidence for a jury to find that plaintiff was hired as a manager, the court cannot

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accept the assertion that she was a “straw boss” as a matter of law. Thus, plaintiff has failed to show

United States District Court
For the Northern District of California

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that no reasonable jury could find that she is an exempt employee under California law.

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3. The Court Declines to Consider Whether Entry of Judgment on Plaintiff’s Equitable
Claim is Proper Under Rule 52

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Finally, plaintiff offers the rather novel argument that under Fed. R. Civ. P. 52, the court may

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enter judgment on her claim for restitution sua sponte, despite the fact both parties consented, either

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expressly or impliedly, to a jury trial on both equitable and legal claims. Plaintiff contends that the

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court may declare post-hoc that the jury was “advisory” pursuant to Rule 39(c), which allows

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equitable claims to be tried to advisory juries, and that because the jury deadlocked, the court’s entry

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of judgment in her favor would not constitute an impermissible jury “veto.” While plaintiff cites

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appellate cases upholding somewhat similar procedures by district courts, there is no authority

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allowing a trial court to declare a jury “advisory” several weeks after the case has concluded. See

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Similarly, California Wage Orders specifically provides that “The activities
constituting exempt work and nonexempt work shall be construed in the same manner as
such terms are construed . . . under the Fair Labor Standards Act.” 8 Cal. Code Regs. tit.
8, § 11050(1)(B)(1)(e).
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The term “straw boss” is used to describe a class of employees known as
“working foremen,” who are typically laborers or mechanics engaged in production-type
duties. See 29 C.F.R. § 5.2(m); DLSE Enforcement Policies and Interpretations Manual,
March 2006, http://www.dir.ca.gov/dlse/dlsemanual/dlse_enfcmanual.pdf. The
Department of Labor suggests that the managerial duties of a “straw boss” should not be
counted as exempt work for the purposes of meeting the 50% threshold. See id. at 51-3.
While the court is highly dubious that plaintiff could fit into such a category, it will
assume for the purpose of the instant motion that a bar manager could, under certain
circumstances, be considered a “straw boss.”
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Case No.: C 08-05722 RMW
ORDER DENYING PLAINTIFF’S RULE 50(b) MOTION FOR JUDGMENT AS A MATTER OF LAW

Merex A.G. v. Fairchild Weston Sys., 29 F.3d 821, 827 (2d Cir. 1994) (district court declared jury

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advisory at close of plaintiff’s case-in-chief); Ed Peters Jewelry Co. v. C & J Jewelry Co., 215 F.3d

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182, 188 (1st Cir. 2000) (district court declared jury advisory at close of evidence but before the case

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was submitted to the jury). Moreover, the cited authorities held that district courts did not abuse

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their discretion in sua sponte declaring a jury advisory after the presentation of evidence, but noted

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that “advance notice should be given, if at all possible, of a ruling disqualifying a jury … in what

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was considered at the outset to be a jury trial.” Id. Other courts have held that advance notice is a

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prerequisite for invoking Rule 39(c). See Thompson v. Parkes, 963 F.2d 885, 888 (6th Cir. 1992)

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(“The rule requires that the court’s initiative in ordering a trial to an advisory jury must occur, and

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United States District Court
For the Northern District of California

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the parties be made aware of it, before the case is submitted.”); Bereda v. Pickering Creek Indus.

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Park, Inc., 865 F.2d 49, 53 (3d Cir. 1989) (requiring a district court to “notify both sides of a jury’s

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advisory status no later than the time at which the jury selection has begun”). While the Ninth

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Circuit has not expressly addressed this issue, it found in a similar context that because of the

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“significant tactical differences in presenting a case to a court, as opposed to a jury[,] the parties are

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entitled to know at the outset of the trial whether the decision will be made by the judge or the jury.”

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Pradier v. Elespuru, 641 F.2d 808, 811 (9th Cir. 1981). Thus, to the extent it has discretion to do so,

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the court declines to declare the jury advisory at this late stage and without notifying the parties in

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advance. Accordingly, the court rejects plaintiff’s invitation to consider whether she is entitled to

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judgment under Rule 52.

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III. ORDER
For the foregoing reasons the court denies plaintiff’s motion for judgment as a matter of law.

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IT IS SO ORDERED.

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Dated: July 3, 2012

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_________________________________
RONALD M. WHYTE
United States District Judge

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Case No.: C 08-05722 RMW
ORDER DENYING PLAINTIFF’S RULE 50(b) MOTION FOR JUDGMENT AS A MATTER OF LAW