KING et al v. USA

Filing 103

UNREPORTED ORDER granting 87 Motion to Strike; denying 91 Motion to Strike; denying 94 Motion to Amend/Correct. Signed by Judge Nancy B. Firestone. (rh) Copy to parties.

In the United States Court of Federal Claims
No. 12-175C
(Filed: July 17, 2014)
UNREPORTED

JOHNATHAN DANIEL KING, et al.,
Plaintiffs,
v.
THE UNITED STATES,
Defendant.

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Motion to strike government’s
counterclaims, granted; motion to
exclude expert testimony and report,
denied

ORDER
Oral argument was heard in the above-captioned case on several motions pending
before the court, including: plaintiffs’ motion to strike the government’s counterclaims,
ECF No. 87; plaintiffs’ motion to exclude in part the testimony and report of defendant’s
expert Rodney J. Bosco, ECF No. 91; and the government’s motion to amend/correct its
counterclaims, ECF No. 94. As explained below, the court concludes that the
government was required to seek leave to assert its counterclaims. Accordingly,
plaintiffs’ motion to strike those counterclaims is GRANTED, and the government’s
motion to amend/correct its counterclaims is DENIED AS MOOT. The court also
concludes, however, that the appropriateness of the government’s expert’s methodology
for calculating Administratively Uncontrollable Overtime (“AUO”) is a matter that will
need to be addressed on summary judgment. Accordingly, plaintiffs’ motion to strike
portions of the expert report of Rodney Bosco is DENIED, except to the extent that the

report contains any analysis that is solely relevant to the counterclaims that have been
stricken.
I.

Plaintiffs’ motion to strike the government’s counterclaims
a. Background
Plaintiffs filed their complaint on March 16, 2012. ECF No. 1. The government’s

answer, filed May 17, 2012, did not include any affirmative defenses or counterclaims.
See ECF No. 9. On April 9, 2014, this court granted—over the government’s
objection—plaintiffs’ motion to amend the complaint so as to include (1) an alternative
request for pre-judgment interest should plaintiffs not receive liquidated damages; and (2)
overtime compensation for canine care. See ECF No. 80. On May 1, 2014, the
government filed its answer to the amended complaint in which the government, for the
first time, raised two counterclaims related to overpayments of AUO. The parties agree
that a judgment against the plaintiffs with regard to the government’s counterclaims
could exceed any recovery plaintiffs might have expected to recover for the government’s
alleged violation of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq.
b. The government was required to seek leave to assert its counterclaims
Plaintiffs’ motion to strike raises an issue that has not been squarely addressed by
the Federal Circuit: whether a defendant is entitled to file an answer to an amended
complaint that adds counterclaims or alternative defenses that were not included in the
defendant’s original answer without first seeking leave of the court. As reflected in
recent district court opinions, at least four approaches have been used to address this
issue. As one court has explained:

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[T]hree approaches have been characterized as permissive, moderate, and
narrow. Courts applying the narrow approach hold that an amended answer
must be confined specifically to the amendments to the complaint. At the
opposite end of the spectrum, those applying the permissive view hold that
the defendant is allowed to plead anew to the amended complaint as though
it were the original complaint. In between these two views, those courts
applying the moderate approach hold that the breadth of the changes in the
amended response must reflect the breadth of the changes in the amended
complaint.
Va Innovation Scis., Inc. v. Samsung Elecs. Co., No. 2:12CV548, 2014 WL 1308699, at
*5-9 (E.D. Va. Mar. 31, 2014) (adopting moderate approach) (internal quotations and
citations omitted). A fourth approach advocates applying the Fed. R. Civ. P. Rule
15(a)(2) standard to new or amended counterclaims. See Bern Unlimited, Inc. v. Burton
Corp., No. 11-12278-FDS, 2014 WL 2649006, at *4-6 (D. Mass. June 12, 2014). Under
this approach, the counterclaim would be generally be permitted, except in instances of
bad faith, dilatory motive, undue prejudice, undue delay, or other similar reasons. Id. at
*5.
Having reviewed these various approaches, the court adopts the moderate rule for
the reasons identified in Va Innovation Scis., Inc. Under this approach, a party must seek
leave to file its counterclaims unless those counterclaims are proportionate to “the
breadth of the changes in the amended complaint.” Va Innovation Scis., Inc., 2014 WL
1308699, at *9 (quoting Elite Entm’t, Inc. v. Khela Bros. Entm’t, 227 F.R.D. 444, 446
(E.D. Va. 2005)). Applying the moderate approach to the case at bar, the court concludes
that the government’s counterclaims must be stricken because the counterclaims far
exceed the breadth of the changes in the amended complaint. As noted, the amended
complaint added claims related to canine care and an alternative claim for pre-judgment
interest should plaintiffs not receive liquidated damages. The parties agree that, if
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successful on its counterclaims, the government’s damages would both exceed any
damages related to canine care, liquidated damages, as well as any damages sought in
plaintiffs’ original complaint. Accordingly, the government was required to seek leave to
file its counterclaims, and plaintiffs’ motion to strike is GRANTED. 1
II.

Plaintiffs’ motion to exclude in part of the testimony and report of
defendant’s expert Rodney J. Bosco
As noted, plaintiff has also moved to exclude in part the testimony and report of

defendant’s expert, Rodney Bosco. Plaintiff contends that (1) the expert report used an
improper methodology for calculating AUO, and (2) Mr. Bosco did not personally
conduct or oversee the calculations that are included in the report. Plaintiff argues that
due to these purported failings, the expert report is inadmissible. In response, the
government argues that plaintiffs’ motion to exclude must be denied as a procedurally
improper attempt to argue the merits of Mr. Bosco’s methodology outside of a summary
judgment context.
The court agrees with the government that the legal question of the proper
methodology for calculating plaintiffs’ overtime pay, including the proper policy or
guidance to apply when calculating AUO, will be addressed on summary judgment.
Thus, plaintiffs’ motion to exclude is premature. Accordingly, plaintiffs’ motion to
exclude the testimony and report of Mr. Bosco is DENIED. The parties will proceed
with briefing their pending motions for summary judgment according to the following
schedule:
July 21, 2014

Plaintiffs’ response and reply due.

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Because the counterclaims are stricken, the government’s pending motion to correct/amend
certain AUO calculations is DENIED AS MOOT.

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August 5, 2014

Defendant’s reply due.

The court intends to contact the parties after briefing is completed to set a date for oral
argument.

IT IS SO ORDERED.

s/Nancy B. Firestone
NANCY B. FIRESTONE
Judge

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