SMITH v. USA

Filing 41

UNREPORTED ORDER granting in part and denying in part 39 Motion to Stay (Status Report due by 9/24/2014). Signed by Judge Victor J. Wolski. (jd) Copy to parties.

In the United States Court of Federal Claims
No. 13-161C
(Filed September 17, 2014)
NOT FOR PUBLICATION

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ROY SMITH, on his own behalf
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and for others similarly situated, *
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Plaintiff,
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v.
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THE UNITED STATES,
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Defendant.
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ORDER
Before the Court is defendant’s motion to stay the parties’ obligation to
submit a joint status report (JSR) until after the Court rules on defendant’s pending
motions for a protective order and for partial dismissal. For the reasons given
below, defendant’s motion is GRANTED-IN-PART and DENIED-IN-PART.
The Court’s August 11, 2014 order denying-in-part and granting-in-part
plaintiff’s motion for conditional class certification and authorization to notify
potential additional plaintiffs directed the parties to submit a JSR on or by
September 2, 2014. Defendant seeks a stay of this obligation until two weeks after
the Court rules on defendant’s pending motion for a protective order and partial
motion to dismiss. Def.’s Mot. to Stay JSR at 1–2. Defendant’s motion for a
protective order seeks to suspend the government’s obligation to respond to the first
set of discovery requests served by plaintiff to the extent they relate to putative
class members who were employed at Veterans Canteen Service (VCS) facilities
nationwide. Defendant’s partial motion to dismiss for failure to state a claim upon
which relief can be granted, pursuant to Rules12(c) and 12(h)(2)(B) of the Rules of
the United States Court of Federal Claims, seeks to eliminate plaintiff’s collective

action claims as well as plaintiff’s claims that defendant acted willfully under the
Fair Labor Standards Act (FLSA). 1
Defendant argues that a stay would be prudent given that any schedule that
the parties may agree upon in a JSR could be rendered obsolete based on the
Court’s resolution of defendant’s pending motions. Id. at 2. Plaintiff filed a
response to defendant’s motion, arguing that such a stay was unnecessary and
urging the Court to require a JSR based on the timeline laid out in the Court’s
August 11, 2014 order. 2
As plaintiff pointed out in his response to defendant’s motion, the mere filing
of a motion does not necessarily require a stay of pending proceedings. Pl.’s Opp’n
to Def.’s Mot. to Stay JSR at 3–5. In this situation, however, the Court agrees with
defendant that any proposed schedule would be premature and tentative in light of
the pendency of defendant’s two motions, the resolution of which would necessarily
affect and shape future proceedings. Thus, to the extent the JSR was to contain
such a proposal, this obligation is postponed until two weeks after the Court
disposes of the pending motions.
On the other hand, the pending motions do not affect the other portion of the
JSR required by the August 11, 2014 order. Accordingly, the parties shall file a JSR
on or by Wednesday, September 24, 2014, containing, for the Court’s review and
approval, the revised draft of the notice to be sent to potential plaintiffs from the
Temple, Texas VCS facility.
In the process of reviewing the government’s motion for a protective order,
the Court notes that defendant has raised no objection to complying with document
request numbers three through six. See Def.’s Mot. for Protective Order, ECF No.
29, at 1 n.1. If defendant has not already done so, the documents responsive to
these requests shall be produced on or by Wednesday, September 24, 2014.
Moreover, it appears to the Court that the grounds advanced in defendant’s motion
would not apply to document request number seven and interrogatory number
three, which concern the factual basis for a position taken by the government in this
proceeding. Defendant shall respond to those two requests on or by Wednesday,
September 24, 2014.

Under the FLSA, the statute of limitations for a willful violation is three years,
whereas the statute of limitations for a non-willful violation is two years. See 29
U.S.C. § 255(a).
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The Court recognizes that the original deadline for submission of a JSR,
September 2, 2014, has passed, resulting in a de facto suspension of over two weeks
already.

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IT IS SO ORDERED.
s/ Victor J. Wolski
VICTOR J. WOLSKI
Judge