Harmon v. Elkins Wrecker Service, Inc. et al

Filing 22

ORDER AND OPINION denying without prejudice 15 Plaintiff's Motion for Summary Judgment and denying 21 Plaintiff's Motion for Status Conference. The Court DIRECTS the Clerk to refer this case to a Magistrate Judge for mediation. All deadlines, including discovery deadlines, will be stayed pending mediation. Signed by Judge Julie E. Carnes on 6/6/13. (ddm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

JERMAINE HARMON,
Plaintiff,
CIVIL ACTION NO.
v.

1:12-cv-758-JEC

ELKINS WRECKER SERVICE, INC., et
al.,
Defendants.
ORDER & OPINION
This case is presently before the Court on plaintiff’s Motion for
Summary Judgment [15]. For the reasons set out below, the Court
concludes

that

the

plaintiff’s

motion

should

be

DENIED

without

prejudice.
BACKGROUND
Plaintiff filed a complaint under the Fair Labor Standards Act
(“FLSA”) against defendant Daniel Elkins and his company, Elkins
Wrecker Service, Inc., for violations of the FLSA’s minimum wage,
overtime compensation, and anti-retaliation provisions. (Compl. [1].)
According to the complaint, the defendants required the plaintiff and
other drivers in the defendants’ employ to work for less than minimum
wage and more than 40 hours per week without paying the overtime rates
required by the FLSA.

AO 72A
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(Id. at ¶ 3.)

The complaint further alleges

that on January 26, 2012, plaintiff gave the defendants a written
request that he be paid minimum wage and overtime as required by FLSA
and was fired the next day.

(Id. at ¶¶ 31 & 33.)

Plaintiff seeks

damages in an amount equal to unpaid compensation, declaratory and
injunctive relief, and reasonable attorneys’ fees pursuant 29 U.S.C.
§ 216.

(Id. at ¶ 36.)

Initially, defendants defaulted for failing to timely answer the
complaint and, after the clerk’s entry of default, plaintiff moved for
default judgment.

(Pl.’s First Motion for Default J. [8].)

Before

the Court could rule on the motion, however, defendants filed an
answer and the Court denied plaintiff’s first motion for default
judgment.

(June 20, 2012 Order [10] at 1.)

However, the Court

informed the corporate defendant, Elkins Wrecker Service, that it
could not proceed pro se and must retain counsel.

(Id.)

After the

corporate defendant failed to retain counsel, the plaintiff renewed
his motion for default judgment.

(Pl.’s Second Motion for Default J.

[12] at 12.)
The Court again denied plaintiff’s motion and vacated the entry
of default as to the individual defendant, Daniel Elkins, because his
answer

not

only

set

forth

a

markedly

different

account

of

the

plaintiff’s employ with the defendants, but it also raised “several
factual and legal defenses to plaintiff’s claim of FLSA violations.”
(Jan. 28, 2013 Order [17] at 7.)
2

AO 72A
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The undersigned also found it

inappropriate to enter a default judgment against the corporate
defendant while allowing the claims against the individual defendant
to proceed on the merits.

(Id. at 13.)

Therefore, the Court also

denied the plaintiff’s motion against the corporate defendant, but did
so without prejudice to allow plaintiff to re-file its motion upon the
conclusion of the case against the individual defendant, Daniel
Elkins.

(Id. at 13-14.)

Before the Court issued its order and opinion regarding the
plaintiff’s second motion for default judgment, the plaintiff filed
the present motion for summary judgment.

(Pl.’s Motion for Summ. J.

(“PMSJ”) [15].) Plaintiff’s motion contends that there are no genuine
issues of disputed fact because the defendants have admitted all of
the essential elements proving plaintiff’s claim.

(Id.)

Plaintiff

makes this argument even though defendants, both in their answer [9]
and

opposition

to

summary

judgment

allegations in the complaint.

[18],

vehemently

deny

the

Plaintiff contends that defendants

“admit” the conduct alleged by the plaintiff because defendants failed
to answer the Requests for Admission (“Request”) properly served on
him by the plaintiff.

(“PMSJ” [15] at 5.)

The Request essentially asked the defendants to admit all the
facts

as

alleged

in

the

complaint

even

though

previously denied these allegations in his answer.

3

AO 72A
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defendants

had

In other words,

plaintiff’s Request is simply a recitation of the allegations of the
complaint, except put in a form that asks for an admission.1
Defendants,2 proceeding pro se, filed a response that reads more
like

the

judgment.3

affidavit

of

James

Elkins

than

a

response

to

summary

(Def.’s Resp. to Summ. J. (“Def.’s Resp.”) [18].)

The

defendants’ response confirms and expounds on the facts that were
previously set out in defendants’ answer.

It reaffirms defendants’

contentions that plaintiff was hired on an “as-needed/if-needed” basis
and not as a full-time employee.

(Id. at ¶ 2.)

It also reasserts

defendants’ contention that plaintiff refused to complete a physical,
which is required by the U.S. Department of Transportation for any

1

The inference that plaintiff copied and pasted the allegations
from the complaint is supported not only by the fact that every
individual request for admission recites verbatim a paragraph
contained in the complaint, but also by typographical errors found in
the Request. For example, it appears that plaintiff forgot to add
"Please admit that" in front of one of its requests so that paragraph
merely restates paragraph 20 of the Complaint [1] without asking
defendant to admit anything. (Pl.'s First Requests for Admission
[15-3] at 23 ¶ 8.)
2

The Court is aware that an entry of default has been entered
as to the corporate defendant, Elkins Wrecker Service, Inc., and
that, at the present time, the only defendant formally litigating
this case is defendant Daniel Elkins.
Nevertheless, as the
defendants collectively filed both an answer and a response, the
Court will refer to defendants in the plural, unless otherwise
indicated.
3

James Elkins signed the motion even though he is not a party
to this suit nor, to the Court's knowledge, an attorney licensed to
practice in Georgia.
4

AO 72A
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driver of a commercial motor vehicle, and that he failed to comply
with other federal requirements necessary for his employment with the
defendants.

(Id. at ¶¶ 1 & 3.)

Defendants’ answer previously indicated that plaintiff was fired
because he was caught entering vehicles in the defendants’ storage lot
that did not belong to either the plaintiff or the defendants.
(Answer [9] at 4.)
greater detail.

The defendants’ response explains this event in

(Def.’s Resp [18] at ¶¶ 4-6.)

According to the

response, plaintiff worked an accident involving an SUV rollover.
When the owner of the SUV came by the defendants’ business the next
day to retrieve his personal belongings, he could not find a black
laptop that had been in the SUV.

(Id. at ¶ 4.)

The defendants’

response claims that video evidence shows plaintiff entering the lot,
going straight to the SUV and then removing what appears to be a black
laptop from the SUV.

(Id.)

The response attaches still shots taken

from the security video in support of these statements.

(Id. at 5.)

As previously asserted in the answer, the response reiterates
that, once confronted about the theft, plaintiff became very angry and
left work.

(Id. at ¶ 4.)

According to the response, when plaintiff

returned to work the next day, James Elkins gave him a separation
notice, along with a criminal trespass notice.
¶ 5.)

Plaintiff responded by brandishing a pistol, cursing at co-

workers, and threatening to file a lawsuit.
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(Def.’s Resp [18] at

(Id.)

In his reply to defendants’ response, plaintiff makes no effort
to refute any of defendants’ allegations.

Instead, the reply merely

objects to consideration of the reply because James Elkins, a nonparty to this suit, signed the defendants’ response.

(Pl.’s Rep. to

Def. James Elkins’ Resp. to Mot. for Summ. J. (“Pl.’s Rep.”) [19] at
2.)

In fact, although it is plaintiff who has filed a motion for

summary judgment, he has failed to provide this Court with any
evidence substantiating a single allegation in the complaint or
refuting any of the facts set forth in the defendants’ answer or
response to summary judgment. (See PMSJ [15] and Pl.’s Resp. [19].)
Instead, in seeking a summary judgment, plaintiff relies solely on
technical deficiencies in defendants’ filings and defendants’ failure
to properly respond to the PMSJ.
DISCUSSION
As an initial matter, the Court makes two observations.

First,

the Eleventh Circuit explicitly condemns use of Rule 36 requests for
admission in the manner that plaintiff has done here.

Second,

granting an unopposed motion for summary judgment without reviewing
the merits of the motion would violate Eleventh Circuit precedent.
As plaintiff notes in his motion, (PMSJ [15] at 5.), the purpose
of Rule 36 is “to expedite the trial and to relieve the parties of the
cost of proving facts that will not be disputed at trial.”

Perez v.

Miami-Dade County, 297 F.3d 1255, 1268 (11th Cir. 2002)(emphasis in
6

AO 72A
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original). Plaintiff’s use of Rule 36 does not accord with the rule’s
purpose, however.

If anything, it has had the opposite effect of

delaying the litigation and increasing costs on the parties.
Perez involved a plaintiff who, like plaintiff Harmon, served
upon defendant requests for admission that were, “for the most part,
a verbatim copy of the complaint, save a few minor changes.”4
1258.

Id. at

Although the defendants previously filed an answer denying the

allegations in the complaint, they failed to respond to the requests
within the thirty-day time limit.

The district court deemed the

requests admitted under Rule 36(a) and subsequently denied defendant’s
36(b) motion to withdraw those admissions.

Id. at 1261-62.

In

reversing the district court, the Eleventh Circuit noted that while
district

courts

maintain

broad

discretion

in

managing

pretrial

discovery matters, the district court had abused its discretion in
refusing to allow the defendant to withdraw his purported admissions.
Id. at 1263 & 1269.
The Perez court concluded with a comment on Rule 36 that is
pertinent to the present discussion in this case:
That is, when a party uses [Rule 36] to
establish uncontested facts and to narrow the

4

The Eleventh Circuit similarly noted that the request by the
plaintiff in Perez is “replete with the same typographical errors as
the complaint and even includes such statements as, ‘This is a claim
for deprivation of constitutional rights under color of state
law...’” Perez, 297 F.3d at 1258.
7

AO 72A
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issues for trial, then the rule functions
properly. When a party [], however, uses the
rule to harass the other side or, as in this
case, with the wild-eyed hope that the other
side will fail to answer and therefore admit
essential elements (that the party has already
denied in its answer), the rule’s time-saving
function ceases; the rule instead becomes a
weapon, dragging out the litigation and
wasting valuable resources.
For this reason, we believe that it is
inappropriate to (as well as prohibited by
Rule 36 itself) for a plaintiff to serve a
request
for
admissions
along
with
the
complaint. It is simply too early for the
defendant, having not yet received the
allegations, to perceive what facts should be
contested.
Once a defendant has answered,
moreover, it continues to be inappropriate for
a plaintiff to re-serve the complaint in the
form of a request for admissions in order to
require the defendant to admit or deny nearly
every paragraph of a complaint it has already
answered. This is especially true here, where
the defendants had denied [plaintiff]’s core
allegations
[].
[Plaintiff]’s
continued
service of the same request for admissions in
the face of these denials was an abuse of Rule
36.
Perez, 297 F.3d at 1268-69
omitted)(emphases added).

(internal

quotations

and

citations

The conduct of plaintiff Harmon and his counsel is identical to
the conduct described in Perez.

Instead of attempting to submit any

evidence, even an affidavit from Harmon himself,5 plaintiff and his
5

Plaintiff submitted an affidavit asserting the damages he
would be entitled to if he had worked through June 1, 2012 but the
affidavit curiously does not attempt to substantiate any of the
factual allegations made in the complaint or attach any evidence that
might accomplish this. (Harmon Aff. [7].)
8

AO 72A
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counsel have attempted to use Rule 36 to gain what would be the
equivalent of a summary judgment by default.
Additionally,

to

the

extent

that

plaintiff

is

making

this

request, granting a motion for summary judgment simply because it is
unopposed would also violate Eleventh Circuit precedent.

Plaintiff

cites Local Rule 56.1, NDGa., in support of its argument that the
Court should, for all practical purposes, disregard all of the other
evidence on the record and grant the summary judgment motion.
Resp. [19] at 3.)

(Pl.’s

The Eleventh Circuit has found that when a non-

moving party fails to comply with Local Rule 56.1, “the court has
before it the functional analog of an unopposed motion for summary
judgment.”

Reese v. Herbert, 327 F.3d 1253, 1268 (11th Cir. 2008).

However, this lack of opposition does not automatically entitle the
movant to summary judgment because “the movant is not absolved of the
burden of showing that it is entitled to judgment as a matter of law,
and a Local Rule 56.1 statement is not itself a vehicle for making
factual assertions that are otherwise unsupported in the record.” Id.
at 1268-69.
In this case, plaintiff submitted a statement of undisputed facts
pursuant to Local Rule 56.1. It is true that defendant Elkins did not
file a separate pleading responding to that statement, as he should
have done, but incorporated his disagreement with plaintiff’s facts in
his response pleading.

That technical breach, however, is trumped by
9

AO 72A
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the failure of the record to support any of plaintiff’s assertions and
therefore, the Court “must ensure that the motion itself is supported
by evidentiary materials.” Id. at 1269 (quoting from United States v.
One Piece of Real Property Located at 5800 SW 74th Avenue, Miami,
Florida, 363 F.3d 1099, 1101-02 (11th Cir. 2004)). With that standard
in mind, the Court will now review the merits of plaintiff’s summary
judgment motion.
I.

SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate when the pleadings, the discovery

and disclosure materials on file and any affidavits, show “that there
is no genuine [issue] as to any material fact and that the movant is
entitled to judgment as a matter of law.”

FED. R. CIV. P. 56(c).

An

issue is material if, “under the applicable substantive law, it might
affect the outcome of the case.”

LeBlanc v. Unifund CCR Partners, 601

F.3d 1185, 1189 (11th Cir. 2010).

An issue is genuine when the

evidence is such that a reasonable jury could return a verdict for the
nonmovant.

See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50

(1986).
Summary judgment is not properly viewed as a device that the
trial court may, in its discretion, implement in lieu of a trial on
the merits.

Instead, Rule 56 of the Federal Rules of Civil Procedure

mandates the entry of summary judgment against a party who fails to
make a showing sufficient to establish the existence of every element
10

AO 72A
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essential to that party’s case on which that party will bear the
burden of proof at trial.
(1986).

Celotex Corp. v. Catrett, 477 U.S. 317, 322

In such a situation, there can be no genuine issue as to any

material fact, as a complete failure of proof concerning an essential
element of the non-moving party’s case necessarily renders all other
facts immaterial.

Id. at 322-23 (quoting FED. R. CIV. P. 56(c)).

The movant bears the initial burden of asserting the basis for
his motion.

Id. at 323.

When evaluating whether this burden has been

met, “the district court must review the evidence and all factual
inferences drawn therefrom, in the light most favorable to the nonmoving party.”

Hairston v. Gainesville Sun Publ’g Co., 9 F.3d 913,

918-19 (11th Cir. 1993).

Once this initial burden is met, then the

non-movant must go beyond the pleadings to establish that there exists
a genuine issue of material fact.

Id.

this

competent

requirement

by

presenting

The non-movant may satisfy
evidence

designating

“specific facts showing that there is a genuine issue for trial.”
Celotex, 477 U.S. at 324.
II.

PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
Plaintiff contends that he is entitled to summary judgment

because defendants have

“admitted” all the facts alleged in the

complaint by virtue of their failure to respond to the Request for
Admission.

(PMSJ [15] at 5.)

As noted, defendants submitted what

they believed to be a response to the PMSJ that set forth facts
11

AO 72A
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markedly different from the facts

alleged in the complaint.

This

filing, however, is not signed by defendant Daniel Elkins or by an
attorney, but by James Elkins.6

Further, the response reads very much

like an affidavit, as the signatory refers to Elkins Wrecker Service
as “our company” and states that plaintiff “dared me to touch him” in
describing the altercation that allegedly took place after plaintiff
was notified of his dismissal and given a criminal trespass warning.
(Def.’s Resp. [18] at ¶¶ 1 & 6 (emphasis added).)
A.

Defendants’ Response to Summary Judgment

A court may consider any materials in the record when ruling on
a summary judgment motion.

FED. R. CIV. P. 56(C)(3).

Rule 56 also

requires that declarations used to oppose a motion must be made on
personal knowledge, set out facts admissible in evidence and show that
the declarant is competent to testify on the matters stated.
CIV. P. 56(c)(4);

FED. R.

Macuba v. Deboer, 193 F.3d 1316, 1322-23 (11th Cir.

1999).
Giving the appropriate deference to defendant Elkins’ pro se
status,

defendants’

response

[18]

meets

all

three

of

these

requirements. The response describes several encounters between James
Elkins and plaintiff.

(See Def.’s Resp. [18] at ¶¶ 3-6.)

6

Thus, the

The Court assumes that James Elkins is related to Daniel
Elkins and that he has some ownership interest in Elkins Wrecker
Service. Clearly, the affidavit suggests that he was involved in the
management of the business and that he had direct interaction with
plaintiff that is relevant to the issues in this case.
12

AO 72A
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recounting

of

these

events

appears

to

be

made

on

knowledge of the document’s signatory, James Elkins.

the

personal

Further, there

is no suggestion that James Elkins would not also be competent to
testify about events to which he was a witness or participant.
However, the declaration must still set out facts that would be
admissible in evidence.

The factual assertions in James Elkins’

response/affidavit appear to arise from his own personal knowledge.
Even if there is some hearsay in this pleading, inadmissible hearsay
may be considered at the summary judgment stage if the statement could
be reduced to an admissible form.

Pritchard v. S. Co. Servs., 92 F.3d

1130, 1135 (11th Cir. 1996), citing McMillian v. Johnson, 88 F.3d
1573(11th Cir. 1996).

“The most obvious way that hearsay testimony

can be reduced to admissible form is to have the hearsay declarant
testify directly to the matter at trial.”

Jones v. UPS Ground

Freight, 683 F.3d 1283, 1294 (11th Cir. 2012).
In the present case, there is no reason to believe that James
Elkins will not be available to testify at trial as to the matters set
out in his response.

This fact, combined with the proffer of a video

that will allegedly show the plaintiff stealing from defendants’
customer, eliminates any hearsay concerns at this juncture.7
7

(Def.’s

The response attaches still shots from the security video
purporting to show plaintiff inside the customer’s SUV and leaving
the property with a black laptop in hand. (Id.) Plaintiff has
articulated no concerns about the authenticity of the still shots or
of the video.
13

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Resp. [18] at 5.) See also X v. Brierley, 457 F. Supp. 350, 351 n.1
(E.D. Pa. 1978)(district court relied on signed, unsworn statement
where opposing party did not dispute the accuracy of its assertions
and where all of the assertions appeared to deal with matters that
were within the declarant’s personal knowledge.); Auto Club Family
Ins. Co. v. Mullins, No. 5:11-cv-1451-AKK, 2012 WL 6043652, at *5 n.
7 (N.D. Ala. 2012)(Kallon, J.)(finding that, at the summary judgment
stage, the court may properly consider statements that were neither
verified

or

made

under

oath

because

the

statements

could

be

authenticated through the declarant).
For the above reasons, the Court concludes that the defendants’
response could be reduced to an admissible affidavit and, thus, may
properly be considered by the Court at this stage of the proceedings.
See Fed R. Civ. P. 56; Macuba v. Deboer, 193 F.3d 1316, 1323-24 (11th
Cir. 1999). Having made this determination, the Court now turns to the
plaintiff’s specific claims of FLSA violations.
B.

Plaintiff’s FLSA Overtime and Minimum Wage Claim

In order to establish a prima facie case, a plaintiff has the
burden of showing “as a matter of just and reasonable inference that
the wages paid to him did not satisfy the requirements of the FLSA.”
Caro-Galvan v. Curtis Richardson, Inc., 993 F.2d 1500, 1513-14 (11th
Cir. 1993)(quoting Donovan v. New Floridian Hotel, Inc., 676 F.2d 468,
475 n. 12 (11th Cir. 1982)).
14

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As

noted,

in

support

of

his

motion

for

summary

judgment,

plaintiff offers only defendants’ “admissions” that plaintiff worked
overtime hours without compensation and no other evidence. (PMSJ [15]
at 7.)

Defendants, however, have never made a direct admission to

this effect.

In their answer, defendants stated

that plaintiff was

to be paid by commission and that “no drivers of defendant have ever
been or will ever be paid an hourly rate.” (Answer [9] at 3.)
Further, James Elkins declared that “plaintiff did not work enough .
. . to constitute full or part time employment.”

(Def.’s Resp. [18]

at ¶ 2.)
Plaintiff does not, in either his motion or reply, attempt to
reconcile or explain these differences, instead resting only on the
argument that defendants “admitted” the prima facie case, by virtue of
defendants’ failure to respond to plaintiff’s requests for admission.
(See Pl.’s Rep. [19].) As discussed above, the defendants’ failure to
respond does not, under the circumstances of this case, constitute
affirmative evidence of the facts identified in the requests for
admission.

As to the actual evidence in the record, defendants have

offered evidence, through their response/affidavit that plaintiff did
not work the necessary number of hours to be considered a full-time
employee, much less be entitled to overtime pay. When the Court views
the above facts in a light most favorable to the non-movant defendant,
Hairston, 9 F.3d at 918-19, it must conclude that plaintiff has
15

AO 72A
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provided no affirmative evidence of the amount and extent of his work
while employed by the defendants.
meet his prima facie burden.

Therefore, plaintiff has failed to

Rance v. Rocksolid Granit USA, Inc., 292

Fed. Appx. 1, 2 (11th Cir. 2008)(affirming district court’s dismissal
of FLSA overtime claim for failure to meet the ‘just and reasonable
inference’

standard

documentation

because

provide

no

plaintiff’s

evidence

of

“complaint

the

amount

and
and

attached
extent

of

[plaintiff’s] work”).
For these reasons, the Court DENIES the plaintiff’s motion [15]
with respect to plaintiff’s FLSA claim without prejudice.
C.

Plaintiff’s FLSA Retaliation Claim

The plaintiff also moved for summary judgment on his claim that
he was fired in retaliation for requesting he be paid minimum wage and
overtime as required by the FLSA.
defendants

have

alternative,

(PMSJ [15] at 8.)

already

denied

this

legitimate

reason

for

allegation
dismissal

Although the

and
in

provided

their

an

answer,

plaintiff contends that defendant Elkins “has abandoned any purported
legitimate reason for terminating Plaintiff’s employment and has
admitted to a prima-facie case.”

(Id.)

Again, plaintiff does not

base this abandonment argument on later statements made by the
defendants, but simply on defendants’ failure to timely respond to
plaintiff’s requests for admission.

16

AO 72A
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The

FLSA

protects

persons

from

retaliation

based

on

their

participation in permitted activities under the statute. See 29 U.S.C.
§ 215(a)(3).

Where no direct evidence of retaliatory discharge is

presented, a court may evaluate the circumstantial evidence under the
burden-shifting framework articulated in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973).

Raspanti v. Four Amigos Travel, Inc., 266

Fed. Appx. 820, 822 (11th Cir. 2008).

Under this framework, the

plaintiff must first establish a prima facie case of retaliation.
Raspanti, 266 Fed. Appx. at 822.

The burden then shifts to the

employer, who must articulate a legitimate, non-retaliatory reason for
its actions.

Id.

If the employer meets this burden of production,

then the plaintiff must establish that the proffered reason is simply
a pretext.

Id.

In order to meet its prima facie burden on a FLSA retaliation
claim, a plaintiff must demonstrate that “(1) she engaged in activity
protected under the act; (2) she subsequently suffered adverse action
by the employer; and (3) a causal connection existed between the
employee’s activity and the adverse action.”

Wolf v. Coca-Cola

Company, 200 F.3d 1337, 1342-43 (11th Cir. 2000)(internal citations
omitted).

In demonstrating causation, a plaintiff must show that the

adverse action would not have been taken “but for” plaintiff’s
engagement in protected activity. Id. at 1343 (citing Reich v. Davis,
50 F.3d 962, 965-66 (11th Cir. 1995).
17

AO 72A
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Even assuming that plaintiff met its prima facie burden,8 summary
judgment would not be proper.

Defendants provided a legitimate, non-

retaliatory reason for firing the plaintiff, both in their answer and
in the declaration by James Elkins filed in response to the PMSJ.
Therefore, the burden shifted back to the plaintiff to provide
evidence that this reason is merely a pretext. McDonnell Douglas, 411
U.S. at 807.

Here, the plaintiff did not even attempt to argue

defendants’ proffered reason was a pretext.

Therefore, plaintiff has

not met his burden for receiving summary judgment.
For

the

above

reasons,

the

Court

DENIES

without

prejudice

plaintiff’s motion [15] for summary judgment with respect to the FLSA
retaliation claim.
III. MEDIATION
Plaintiff submitted an affidavit in which he claims damages
totaling $95,451.14. (Harmon Aff. [7] at ¶ 8.)

Of this amount,

however, plaintiff only claims $2,739.25 for overtime pay that he
claims to have earned. He also claims that he would have received

8

In Wolf, the Eleventh Circuit affirmed a district court’s grant
of summary judgment in favor of the employer because plaintiff failed
to meets its initial prima facie burden. 200 F.3d at 1343. The
Eleventh Circuit found that the employer provided a legitimate reason
for plaintiff’s dismissal and, alternatively, that because plaintiff
did not provide sufficient evidence of pretext, she failed to prove
that she would have been fired “but for” her assertion of FLSA
rights.
Id.
In the present case, plaintiff has pointed to no
evidence that defendants’ proffered reasons were merely a pretext.
18

AO 72A
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$8,550.00 in future wages had he remained employed through June 2012.
(Id. at ¶¶ 2-3.)
(unspecified

in

The remaining $84,161.89 is for liquidated damages
affidavit),

104

weeks

of

front

pay

in

lieu

reinstatement, compensatory damages for emotional distress,

of
and

attorney’s fees.
Notwithstanding the above claim, it appears that the likely
damages in this case could well be quite modest, given the plaintiff’s
short employment with the defendants.

That is, most of plaintiff’s

claim relies on speculation that he would have been employed for a
long period into the future, which assumption seems quite uncertain if
the defendants can in fact demonstrate that plaintiff stole from the
defendants’ customer and engaged in the other misconduct they assert.
In addition, if this action proceeds to trial, substantially more
briefing will be required on both the FLSA overtime and retaliation
claims in order to properly instruct a jury.

The Court notes the

plaintiff’s concern over defendants’ failures to properly engage in
discovery in this litigation.

(Pl.’s Rep. [19].)

However, as

discussed above, plaintiff likewise abused Rule 36.

If this case

proceeds forward, the Court will give the parties another opportunity
for

discovery

of

each

other,

participate in that discovery.

and

defendants

will

have

to

That discovery will add to the time

and expense spent on this action.

19

AO 72A
(Rev.8/82)

the

Accordingly, the Court believes that mediation may be beneficial
in

helping

the

economically.
efficient

parties

resolve

their

dispute

efficiently

and

Mediation could provide a more cost-effective and

solution

than

would

expensive

litigation.

The

Court

cautions defendant Elkins that, notwithstanding his perhaps sincere
belief that this lawsuit is frivolous and intended to extort money
from him to which the plaintiff is not entitled, he must participate
in this mediation and comply with any orders from this Court or from
a magistrate judge assigned to this action.
For this reason, the Court DIRECTS the Clerk to refer this case
to a Magistrate Judge for mediation.
P. 16.

See LR 16.7, NDGa.; FED. R. CIV.

All deadlines, including discovery deadlines, will be STAYED

pending mediation.

As set out above, plaintiff’s Motion for Summary

Judgment

DENIED,

[15]

is

as

is

plaintiff’s

Motion

for

Status

Conference [21].
SO ORDERED, this 6th day of JUNE, 2013.

/s/ Julie E. Carnes
JULIE E. CARNES
CHIEF UNITED STATES DISTRICT JUDGE

20

AO 72A
(Rev.8/82)