Fresh v. Diamond Development & Investments Inc. et al
Filing
65
OPINION AND ORDER. Defendant David Ulmer's Motion for Summary Judgment 47 is DENIED. Defendant David Ulmer's Motion to Dismiss 51 is DENIED. Diamond Development & Investments Inc.'s Motion to Dismiss 52 is DENIED AS MOOT. Signed by Judge William S. Duffey, Jr on 9/12/2016. (bgt)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
MICHEAL FRESH,
Plaintiff,
v.
1:13-cv-2657-WSD
DAVID ULMER,
Defendant.
OPINION AND ORDER
This matter is before the Court on Diamond Development & Investments
Inc.’s (“DDI”) Motion to Dismiss [52], and Defendant David Ulmer’s (“Ulmer”)
Motion to Dismiss [51] and Motion for Summary Judgment [47].
I.
BACKGROUND
On August 9, 2013, Plaintiff Micheal Fresh (“Plaintiff”) filed his
Complaint [1] alleging that Ulmer and DDI (collectively, “Defendants”) failed to
pay him overtime wages in violation of the Fair Labor Standards Act of 1938
(“FLSA”), § 7, 29 U.S.C. § 207. On March 9, 2015, Plaintiff, with leave from the
Court, amended [22] his Complaint to add a defendant. That defendant, Restaurant
Development, Inc. (“Restaurant Development”), was later dismissed from this
action because it was not timely served with the Amended Complaint.
On September 3, 2015, the Court found [38] that Defendants had not
complied with (1) Local Rule 16.4, (2) the Court’s July 23, 2015, Order [34]
requiring the parties to file a proposed consolidated pretrial order, (3) the Court’s
August 5, 2015, Order [36] requiring Defendants to show cause case why default
judgment should not be entered against them, (4) and the Court’s August 18, 2015,
Order again requiring the parties to file a proposed consolidated pretrial order. The
Court found that Defendants had been given “ample opportunity” to file a
proposed consolidated pretrial order and that their “flagrant” failure to do so
warranted sanctions. On September 3, 2015, as a result of Defendants’ violations,
the Court entered default against Defendants.
Six (6) months later, on March 9, 2016, Plaintiff filed his Motion for Default
Judgment [44], seeking entry of judgment against Defendants for $23,850 in
unpaid overtime wages, liquidated damages in the same amount, attorneys’ fees,
litigation expenses, and prejudgment interest. On March 29, 2016, Ulmer, now
proceeding pro se, filed his Response to Plaintiff’s Motion for Default
Judgment [46], requesting that the Court deny Plaintiff’s motion and set aside the
entry of default.1
1
Until filing his Response to Plaintiff’s Motion for Default Judgment, Ulmer
was represented by counsel in this case.
2
On March 29, 2016, Ulmer filed his Motion for Summary Judgment,
asserting that Plaintiff does not adequately plead that Defendants employed him,
that an entity known as Worklife Financial actually employed him, and that
Plaintiff was an “administrative employee” and thus exempt from FLSA’s
overtime requirements. On April 21, 2016, Plaintiff filed his Opposition to
Defendants’ Motion for Summary Judgment [49], arguing that Ulmer’s motion is
untimely and fails to comply with the Local Rules of this Court.
On May 11, 2016, the Court considered [50] Plaintiff’s Motion for Default
Judgment, declined to set aside the entry of default, found that Plaintiff’s Amended
Complaint states an overtime claim under FLSA, and scheduled an evidentiary
hearing to determine the amount of Plaintiff’s damages.
On July 1, 2016, Ulmer filed his Motion to Dismiss under Rule 12(b)(6) of
the Federal Rules of Civil Procedure (“Rule 12(b)(6)”). In it, Ulmer argues that
Restaurant Development employed Plaintiff and that Restaurant Development was
not covered by FLSA during Plaintiff’s employment because it did not have an
annual gross volume of sales of at least $500,000. On July 6, 2016, DDI filed its
Motion to Dismiss, adopting the arguments made in Ulmer’s Motion to Dismiss.
On July 6, 2016, the Court held an evidentiary hearing on Plaintiff’s Motion
for Default Judgment. Plaintiff testified on the issue of whether he worked for
3
Defendants in a “bona fide executive, administrative, or professional capacity.”
29 U.S.C. § 213(a)(1). Ulmer informed the Court that DDI was a shell
corporation, without assets, that no longer exists. Ulmer also stated that
Defendants were not covered by FLSA during Plaintiff’s employment because
their enterprise did not have annual gross sales of at least $500,000. Ulmer stated
further that Plaintiff worked for a Professional Employer Organization retained by
a corporation that Ulmer owned. On July 8, 2016, the Court found that, in light of
the information presented at the evidentiary hearing, a further hearing was
necessary pursuant to Federal Rule of Civil Procedure 55(b)(2).
On September 7, 2016, the Court conducted its second evidentiary hearing
on Plaintiff’s Motion for Default Judgment. At the end of the hearing, the Court
denied Plaintiff’s default judgment motion because the Court was not satisfied that
his allegations were, at that point, adequately supported by the evidence. The
Court also granted Plaintiff’s oral motion to dismiss DDI, which, as Plaintiff
acknowledged, no longer exists and which was not Plaintiff’s employer. The
Court ordered Plaintiff and Ulmer to file a detailed discovery plan by September
14, 2016, and to complete all discovery by January 20, 2017.
4
II.
DISCUSSION
Ulmer’s Motion for Summary Judgment is untimely. Unless otherwise
ordered by the court, motions for summary judgments must be filed “not later than
thirty (30) days after the close of discovery, as established by the expiration of the
original or extended discovery period.” LR 56.1(D), NDGa. Discovery in this
case closed on May 16, 2015. ([23] at 2 (“All discovery shall be completed on or
before May 15, 2015.”)). Without seeking permission from the Court, Ulmer filed
his Motion for Summary Judgment on March 29, 2016, almost a year later. Given
the length of this unexplained delay, and the additional discovery that is
forthcoming, Ulmer’s Motion for Summary Judgment is denied. See
Enwonwu v. Fulton-Dekalb Hosp. Auth., 286 F. App’x 586, 595 (11th Cir. 2008)
(per curiam) (affirming denial of motion for partial summary judgment, filed more
than twenty (20) days after the close of discovery, as untimely under the Local
Rules); Dedge v. Kendrick, 849 F.2d 1398, 1398 (11th Cir. 1988) (per curiam)
(affirming denial of motion for summary judgment, filed more than one month
late, as untimely); see also Enwonwu , 286 F. App’x at 595 (“District courts ‘enjoy
broad discretion in deciding how best to manage the cases before them,’ and that
discretion extends to whether to consider untimely motions for summary
5
judgment.” (internal citations omitted) (quoting Chudasama v. Mazda Motor Corp.,
123 F.3d 1353, 1366 (11th Cir. 1997))).2
Ulmer’s Motion to Dismiss also is untimely. Unless the court orders
otherwise, Rule 12(b)(6) motions must be filed within 14 days of service of an
amended complaint or within the time remaining to respond to the original
complaint, whichever is later. McCray v. Auburn Univ. Montgomery, No. 2:11cv-714, 2011 WL 6140993, at *2 (M.D. Ala. Dec. 8, 2011); see Fed. R. Civ. P.
12(b), 12(h)(2)(A), 15(a)(3). Plaintiff filed his Amended Complaint [22] on
March 9, 2015. Without seeking permission from the Court, Ulmer filed his
Motion to Dismiss on July 1, 2016, more than a year and three (3) months later.
Given the length of this unexplained delay, Ulmer’s Motion to Dismiss is
denied.3, 4
2
In violation of the Local Rules, Ulmer also fails to “include with [his]
motion and brief a separate, concise, numbered statement of the material facts to
which the movant contends there is no genuine issue to be tried.” LR 56.1(B)(1),
NDGa.
3
Under the Local Rules, motions to dismiss for failure to state a claim must
be filed “within thirty (30) days after the beginning of discovery unless the filing
party has obtained prior permission of the court to file later.” LR 7.1(A)(2),
NDGa. Discovery in this case began in mid-November 2014 and Ulmer did not
obtain permission to file his Motion to Dismiss on July 1, 2016, more than a year
and a half later. (See [23] at 1).
4
Because DDI is no longer a defendant in this case, its Motion to Dismiss is
denied as moot.
6
III.
CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Defendant David Ulmer’s Motion for
Summary Judgment [47] is DENIED.
IT IS FURTHER ORDERED that Defendant David Ulmer’s Motion to
Dismiss [51] is DENIED.
IT IS FURTHER ORDERED that Diamond Development & Investments
Inc.’s Motion to Dismiss [52] is DENIED AS MOOT.
SO ORDERED this 12th day of September, 2016.
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