Lovett v. SJAC Fulton IND I, LLC et al
Filing
196
OPINION AND ORDER that Plaintiff's Motion for Reconsideration 143 , and Motion to Supplement the Record on Conditional Certification 145 , are DENIED. IT IS FURTHER ORDERED that Defendants' Motion to Exclude or in the Alternative Motion to Strike the July 17, 2015, Declaration of Jonathan Rodriguez 148 is DENIED. Signed by Judge William S. Duffey, Jr on 2/24/2016. (anc)
area. Plaintiff claims that Defendants misclassified its Assistant Managers,
including Plaintiff, as “exempt” employees, and, as a result, failed to pay overtime
compensation to Plaintiff for hours worked in excess of forty (40) hours per week,
in violation of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201, et seq.2
On April 3, 2014, Plaintiff filed her Complaint [1]. On September 11, 2014,
Plaintiff filed her Motion for Conditional Class Certification [14]. Plaintiff
requested that the Court conditionally certify the class as “all current or former
‘assistant managers’ or former ‘managers’ (not ‘General Manager’) [sic] whom
Defendants classified as exempt, over the past three years.” (Pl’s Reply [29] at
11).3 Defendants opposed conditional certification and relied on declarations from
thirteen (13) Assistant Managers currently employed by Defendants (“Current
Assistant Managers”), to support their argument that Plaintiff is not similarly
situated to the proposed class. (Defs’ Resp. [20] & Exs. A1-A13 [20.1]).
On March 23, 2015, Magistrate Judge Anand issued his Report and
Recommendation (“R&R”), recommending that the Court conditionally certify a
2
Plaintiff also asserts claims, in her individual capacity, for retaliation and sex
discrimination, under Title VII of the Civil Rights Act of 1964.
3
Plaintiff originally sought to represent a class of current and former
Assistant Managers and Shift Supervisors “who were employed by Defendants
over the last three years, worked over 40 hours during one or more workweeks,
and were not paid time-and-a-half compensation for all hours worked over 40.”
(Mot. for Cond. Class Cert. at 1). In her Reply Brief, Plaintiff “refined [her] class
definition” to include Shift Supervisors only “to the extent that Defendants
classified any of their shift supervisors as exempt . . . .” (Pl’s Reply at n.2).
2
class of all Assistant Managers who work or worked for Defendants during the last
three (3) years. (March 23rd R&R [103]).4
On March 27, 2015, Defendants filed their “Motion for Reconsideration of
the Report and Recommendation on Motion for Conditional Class Certification, or,
in the Alternative, Motion to Decertify Class” [107].
On April 28, 2015, the Magistrate Judge (i) denied Defendants’ Motion for
Reconsideration, and (ii) recommended that Defendants’ Motion to Decertify be
denied without prejudice. (April 28th R&R [118]).
On May 12, 2015, Defendants filed their Objections [128] to the March 23rd
and April 28th R&Rs. Defendants argued that the Magistrate Judge erred in
recommending that the Court conditionally certify a class of all Assistant
Managers who work or worked for Defendants during the last three (3) years.
Defendants argued further that, even if conditional certification was appropriate at
the time Plaintiff filed her motion, the Magistrate Judge nevertheless should have
granted Defendants’ Motion to Decertify because discovery is now complete and
Plaintiff is not similarly situated to the putative class members.
4
The Magistrate Judge also recommended that Plaintiff’s Motion for
Conditional Certification be denied to the extent it sought to include Shift
Supervisors in the class, and that Defendants’ Motion to Dismiss for Lack of
Jurisdiction be denied. The parties did not object to these recommendations, and,
finding no plain error, the Court adopted them. (See June 23rd Order at 22-23).
Plaintiff’s Motion for Reconsideration does not involve these issues.
3
On June 23, 2015, the Court sustained Defendants’ Objections to the
Magistrate Judge’s recommendation that Plaintiff be found similarly situated to
other Assistant Managers and that a class of Assistant Managers be conditionally
certified. The Court, having conducted a de novo review of the record, concluded
that Plaintiff is not similarly situated to the class of current and former Assistant
Managers whom she sought to represent. The Court found that, although Plaintiff,
opt-in plaintiff Tishunda Norman (“Norman”), and the Current Assistant Managers
share the same job title, are paid a salary, and, for at least some portion of their
workday, perform non-managerial duties, these general statements, without more,
are insufficient to support Plaintiff’s assertion that she and the proposed class
members are similarly situated. The evidence, rather, was that the job duties
Assistant Managers actually perform, and the time spent performing managerial
versus non-managerial duties, varied throughout the proposed class and, more
persuasively, was different than the duties Plaintiff and Norman claim they
performed. The Court found that, although Plaintiff and Norman may be similarly
situated to each other, there is no evidence to support that they are similarly
situated to the Current Assistant Managers. The Court denied Plaintiff’s Motion
for Conditional Certification, and denied as moot Defendants’ Motion to Decertify.
4
On July 3, 2015, Plaintiff moved for reconsideration of the Court’s
June 23rd Order. Plaintiff argues that the Court erred in conducting a de novo
review of whether Plaintiff is similarly situated to the class of current and former
Assistant Managers she seeks to represent. Plaintiff argues further that, “[s]ince
the Court’s review should have been limited to assessing whether the Magistrate
committed clear legal error when he concluded that Defendants’ declarations had a
low probative value, the Court’s holding in this regard was in error and warrants
reconsideration as well.” ([143.1] at 3-4).
On July 28, 2015, Plaintiff filed her Motion to Supplement. Plaintiff
requests that the Court, in deciding her Motion for Reconsideration, consider the
July 16, 2015, Declaration of Jonathan Rodriguez (“Second Rodriguez
Declaration”) [145.1]. Rodriguez is one of the Current Assistant Managers whose
July 1, 2014, declaration (“First Rodriguez Declaration”) [20.1 at 64-67] was
submitted by Defendants in opposition to conditional certification. Rodriguez now
claims that “[t]here are a number of inaccurate statements included in [his First
D]eclaration,” that when he signed it, he “did not understand everything that was
going on,” and that he had “the firm impression that [he] had no choice but to sign
the [First D]eclaration . . . whether [he] agreed with its contents or not.” (Second
Decl. ¶¶ 16-18). Plaintiff argues that, based on the Second Rodriquez Declaration,
5
“the rest of Defendants’ declarations are so inherently unreliable that they do not
warrant the Court’s consideration.” (Mot. to Suppl. at 6).
On August 3, 2015, Defendants filed their Motion to Exclude the Second
Rodriguez Declaration. Defendants also seek to recover their attorneys’ fees and
costs, under 28 U.S.C. § 1927, based on Plaintiff’s counsel’s conduct in obtaining
the Second Rodriguez Declaration and filing the Motion to Supplement.
II.
DISCUSSION
A.
Legal Standard
A district court has discretion to revise or reconsider interlocutory orders at
any time before final judgment has been entered. See Fed. R. Civ. P. 54(b); see
also Toole v. Baxter Healthcare Corp., 235 F.3d 1307, 1315 (11th Cir. 2000). The
Court does not reconsider its orders as a matter of routine practice, and motions for
reconsideration must be filed “within twenty-eight (28) days after the entry of the
order or judgment.” See LR 7.2 E, NDGa. A motion for reconsideration is
appropriate only where there is: (1) newly discovered evidence; (2) an intervening
development or change in controlling law; or (3) a need to correct a clear error of
law or fact. See Jersawitz v. People TV, 71 F. Supp. 2d 1330, 1344 (N.D. Ga.
1999); Pres. Endangered Areas of Cobb’s History, Inc. v. U.S. Army Corps of
Eng’rs, 916 F. Supp. 1557, 1560 (N.D. Ga. 1995), aff’d, 87 F.3d 1242 (11th Cir.
1996). A motion for reconsideration should not be used to present the Court with
6
arguments already heard and dismissed, or to offer new legal theories or evidence
that could have been presented in the previously-filed motion. See Arthur v. King,
500 F.3d 1335, 1343 (11th Cir. 2007); Bryan v. Murphy, 246 F. Supp. 2d 1256,
1259 (N.D. Ga. 2003); Pres. Endangered Areas, 916 F. Supp. at 1560 (“A motion
for reconsideration is not an opportunity for the moving party and their counsel to
instruct the court on how the court ‘could have done it better’ the first time.”).
B.
Analysis
1.
Review of an R&R on a Motion for Conditional Certification
Plaintiff argues that reconsideration is necessary because the Court erred in
conducting a de novo review of whether Plaintiff is similarly situated to the class
of current and former Assistant Managers whom she sought to represent. In her
Response to Defendants’ Objections to the R&Rs, Plaintiff argued that, because
the R&Rs consider non-dispositive motions, the Court “may only modify the
holdings of the Magistrate Judge, to the extent that Defendants can demonstrate
that the Magistrate’s conclusions were ‘clearly erroneous’ or ‘contrary to law.’”
(Pl’s Resp. [133] at 1-2, 5-7). In its June 23rd Order, the Court stated:
Plaintiff fails to provide any authority to support that, because the
Magistrate Judge had the authority to issue an order granting
conditional certification, the Court is limited to conducting a plain
error review of the record. Even if the Magistrate Judge was
authorized to decide Plaintiff’s Motion for Conditional Class
Certification, in view of the parties’ extensive briefing, and
Defendants’ argument that the Magistrate Judge improperly applied
7
the more lenient ‘notice state’ standard and failed to consider the
declarations submitted by Defendants, the Court exercises its
discretion to conduct a de novo review of the record regarding
conditional certification of the proposed class of Assistant Managers.
(June 23rd Order at 22 n.6).
In her Motion for Reconsideration, Plaintiff again argues that, because her
Motion for Conditional Certification was a non-dispositive, pre-trial issue, the
Court was required to review Magistrate Judge Anand’s R&Rs under the “clearly
erroneous or contrary to law” standard. This argument was considered, and
rejected, in the Court’s June 23rd Order, and it is not a proper basis for
reconsideration. See Arthur, 500 F.3d at 1343. Denial of Plaintiff’s Motion for
Reconsideration is warranted on this basis alone.
Even if it was a proper basis for reconsideration, Plaintiff, for the second
time, fails to provide any authority to support that the Court was required to
conduct only a plain error review. That it may have been within his authority to
decide Plaintiff’s Motion for Conditional Certification does not change that, in this
case, Magistrate Judge Anand chose to issue an R&R rather than an order, and thus
the Court was required to conduct a de novo review of Defendants’ objections to
the R&R. See, e.g., Baker v. Peterson, 67 F. App’x 308, 310-311 (6th Cir. 2003)
(“Here, the questions referred to the magistrate judge are nondispositive pretrial
issues. Nonetheless, in some circumstances it is within the district court’s
8
discretion to conduct a higher level of review of a magistrate judge’s analysis of a
nondispositive issue. . . . Though the issues referred were nondispositive, the court
evidenced a clear intent that it wished to maintain decision-making authority (not
mere review for clear error).”).5
Plaintiff’s argument that the Court is precluded from exercising its discretion
to conduct a de novo review of a matter referred to a magistrate judge is simply
illogical. In Thomas v. Arn, 474 U.S. 140 (1985), the Supreme Court observed:
The district judge has jurisdiction over the case at all times. He
retains full authority to decide whether to refer a case to the
magistrate, to review the magistrate’s report, and to enter judgment.
Any party that desires plenary consideration by the Article III judge of
any issue need only ask. Moreover, while the statute does not require
the judge to review an issue de novo if no objections are filed, it does
not preclude further review by the district judge, sua sponte or at the
request of a party, under a de novo or any other standard.
Thomas v. Arn, 474 U.S. 140, 154 (1985); see also United States v. Frans,
5
Plaintiff argues that the Court “implicitly acknowledged” the Magistrate
Judge’s authority to decide Plaintiff’s Motion for Conditional Certification, based
on Standing Order No. 14-01, which provides that magistrate judges may hear and
determine pretrial matters “to the full extent allowed by 28 U.S.C. § 636(b)(1)(A)
and (B).” Standing Order No. 14-01 provides further that “[t]he District Judge
may, at any time, withdraw the reference to the Magistrate Judge.” This supports
that the district judge, at all times, retains ultimate control over the processing of
the case and thus is not precluded from exercising its discretion to conduct a de
novo review. See Thomas v. Arn, 474 U.S. 140, 154 (1985); Cf. United States
v. S. Tanks, Inc., 619 F.2d 54, 55 (10th Cir. 1980) (“Magistrates exercising their
‘additional duties’ jurisdiction pursuant to a district court’s designation are
nevertheless continuously subject to the inherent supervisory control of the district
judge who retains ultimate decisional responsibility in every case.”).
9
697 F.2d 188, 191 n.3 (7th Cir. 1983) (rejecting defendant’s argument that trial
court erred in reversing order enforcing magistrate judge’s decision to compel
disclosure of government’s informant because magistrate’s determination was not
clearly erroneous or contrary to law, stating: “[t]hese standards [in Section
636(b)(1)(A)], however, do not necessarily restrict district court review of a
magistrate’s findings. A magistrate makes recommendations to the district court.
That court then may satisfy itself that the recommended actions are fair and proper
by receiving additional evidence or conducting a full review.”). The legislative
history of 28 U.S.C. § 636(b)(1)(A) further supports that a court is not prohibited
from exercising its discretion to conduct a de novo review:
Use of the words “may reconsider” in subparagraph (A) is intended to
convey the congressional intent that a matter “heard and determined”
by the magistrate need not in every instance be heard a second time by
the judge. However, if a party requests reconsideration based upon a
showing that the magistrate’s order is clearly erroneous or contrary to
law then the judge must reconsider the matter. Of course, the judge
has the inherent power to rehear or reconsider a matter sua sponte.
H.R. Report No. 1609, 94th Cong., 2nd Sess. 9-11 (emphasis added); see also
Cipollone v. Liggett Group, Inc., 822 F.2d 335, 348 n.1 (3d Cir. 1987) (Garth, J.,
dissenting). Plaintiff’s Motion for Reconsideration is denied.6
6
Having found that the Court was entitled to exercise its discretion to review
de novo whether Plaintiff is similarly situated to the proposed class, Plaintiff’s
argument that the Magistrate Judge did not clearly err in declining to consider the
Current Assistant Managers’ Declarations, is moot. Even if it were not moot, the
10
2.
Motion to Supplement and the Second Rodriquez Declaration
Plaintiff next requests, under the guise of a “Motion to Supplement the
Record on Conditional Certification,” that the Court reconsider its June 23rd Order
in view of the “newly discovered” Second Rodriguez Declaration.7 Rodriguez was
known to Plaintiff, at the latest, on October 6, 2014, when Defendants submitted
the First Rodriguez Declaration with their brief opposing conditional certification
[20]. Plaintiff failed to interview Rodriguez during the discovery period and
Plaintiff otherwise fails to show why she waited until July 17, 2015—more than
three (3) weeks after the Court issued its June 23rd Order—to obtain the Second
Court already considered, and rejected, Plaintiff’s argument that the Current
Assistant Managers’ Declarations should not be considered at the first stage of the
conditional certification process, and it is not a proper basis for reconsideration.
See Arthur, 500 F.3d at 1343. In its June 23rd Order, the Court rejected Plaintiff’s
attempts to limit the scope of the Court’s analysis and found that consideration of
the Current Assistant Managers’ Declarations was “appropriate at this stage in the
litigation because the issues in this case—whether the duties Assistant Managers
perform are consistent with their categorical designation as exempt employees—
requires the Court to evaluate the day-to-day job duties the Assistant managers
actually performed.” (June 23rd Order at 29-30). The Court noted that it would be
required to consider the evidence at the later decertification stage, and that the
Eleventh Circuit has stated that a court may consider a defendant’s “affidavits to
the contrary” in determining whether a plaintiff has met her burden to show that
she is similarly situated to proposed class members. (Id.). Plaintiff’s Motion for
Reconsideration is denied for this additional reason.
7
The Court notes that, after obtaining the Second Rodriguez Declaration,
Plaintiff delayed nearly two (2) weeks—during which time the twenty-eight day
period within which to seek reconsideration expired—before she filed her Motion
to Supplement on July 28, 2015. Plaintiff’s Motion to Supplement is, in effect, an
untimely second motion for reconsideration of the Court’s June 23rd Order, and
denial is warranted on this basis alone. See LR 7.2(E), NDGa.
11
Rodriguez Declaration.8 The Second Rodriguez Declaration is not newly
discovered evidence and it is not properly before the Court. See Arthur, 500 F.3d
at 1343-44 (evidence that could have been presented on the previously-filing
motion is not newly discovered); Mays v. U.S. Postal Serv., 122 F.3d 43, 46
(11th Cir. 1997) (“We join those circuits in holding that where a party attempts to
introduce previously unsubmitted evidence on a motion to reconsider, the court
should not grant the motion absent some showing that the evidence was not
available during the pendency of the motion.”).
Even if the Second Rodriguez Declaration could be considered “newly
discovered” evidence, a close reading of the First and Second Rodriguez
Declarations shows that they are not inconsistent in any manner material to the
Court’s findings and conclusions in its June 23rd Order. In its June 23rd Order, the
Court considered the Current Assistant Managers’ declarations and found that the
job duties they actually perform, and the time spent performing managerial versus
non-managerial duties, at least vary throughout the proposed class and, more
importantly, are different from the duties Plaintiff and Norman claim they
8
At a March 19, 2015, hearing before the Magistrate Judge, Plaintiff
requested to further extend discovery to take additional depositions. The
Magistrate Judge, in his March 23, 2015, Order, permitted Plaintiff to file a brief in
support of her request, including to identify the additional depositions sought and
state why they are necessary and why she was unable to notice them or anticipate
needing them within the discovery period. (March 23rd Order [102] at 3 n.1).
Plaintiff did not file a brief and it appears she abandoned her request.
12
performed. In their declarations, Plaintiff and Norman assert that their “primary
duties” were to prepare and cook the food, serve customers, and keep the restaurant
clean, and that they were not authorized to hire or fire employees. They state
further that the duties they performed were governed by the policies and
procedures contained in Defendants’ manuals, and that they lacked discretion to
vary from these policies and procedures. (See June 23rd Order at 32-33).
The Current Assistant Managers’ declarations showed that, while Assistant
Managers perform Crew Member tasks such as cooking, serving customers and
cleaning, they do so in their own discretion, for varying lengths of time, as means
of managing, training and directing Crew Members, or when the restaurant is
experiencing high volume or to ensure Crew members are performing their duties
in accordance with the Restaurant’s policies and procedures. They also issue
disciplinary warnings, make hiring and firing recommendations, and use their
experience, judgment and discretion to create and manage Crew Members’
schedules, and assign and direct Crew Members in performance of their duties.
(See id. at 33-35).
Based on these declarations, the Court found that Plaintiff, Norman, and the
Current Assistant Managers share the same job title, are paid a salary, and, for at
least some portion of their workday, perform non-managerial duties such as
13
cooking, cleaning, and serving customers. The Court concluded, however, that the
job duties Assistant Managers actually perform, and the time spent performing
managerial versus non-managerial duties, at least vary throughout the proposed
class and, more persuasively, are different than the duties Plaintiff and Norman
claim they performed, including because the Current Assistant Managers exercise
significant discretion in determining Crew Members’ work schedules, assigning
Crew Members to specific workstations, and deciding when they themselves need
to perform Crew Member duties as part of their broader managerial
responsibilities. The Court concluded:
Without deciding whether they were misclassified, the Current
Assistant Managers’ Declarations . . . support that Plaintiff and
Norman performed different day-to-day duties than the class of
Assistant Managers Plaintiff seeks to represent. Simply put, although
Plaintiff and Norman may be similarly situated to each other, there is
no evidence to support that they are similarly situated to the Current
Assistant Managers.
(Id. at 37).
In his Second Declaration, Rodriguez now claims, over a year later,9 that he
had “the firm impression that [he] had no choice but to sign the [First D]eclaration
9
Rodriguez’s First Declaration was based on his experience as an Assistant
Manager at the Mt. Zion Restaurant from October 2013 to June 2014, and at the
Riverdale Restaurant from June 2014 to July 1, 2014, the date of his declaration.
(First Decl. ¶ 3). In his Second Declaration, Rodriguez states that he is currently
employed at the College Park Restaurant, and the Court notes that at some points it
is not clear whether he is describing his current duties at the College Park
14
. . . whether [he] agreed with its contents or not,” that he “did not understand
everything that was going on,” and that “[t]here are a number of inaccurate
statements included in that declaration.” (Second Decl. ¶¶ 16-18). A close reading
of the First and Second Rodriguez Declarations, however, shows that they are not
inconsistent in any manner that is material to whether Plaintiff was similarly
situated to the Current Assistant Managers. For example, Rodriguez now claims
that his statements in his First Declaration that he “coach[es] Crew Members on a
daily basis” and “[p]roved[es] leadership to Crew Members is a big part of [his]
job,” are “inaccurate,” because the Zaxby’s manuals “govern just about every
Restaurant, or also duties in the past and at other locations. For example, in
Paragraph 8 of his First Declaration, Rodriguez states:
During my time as an Assistant Manager at SJAC Mt. Zion, I handled
the hiring of Crew Members. I pulled applications and selected
individuals for interviews. I then conducted interviews and
determined who should be hired. I have not been as involved in the
hiring process since I moved to SJAC Riverdale, but I would be able
[to] make hires again if there was a need for me to.
(Id. ¶ 8) (emphasis added). In his Second Declaration, Rodriguez now claims:
Paragraph 8 [of his First Declaration] is also incorrect. I do not have
authority to hire employees. There were occasions when I was asked
to join the General Manager to interview a potential employee. I do
not dispute that I was allowed to ask questions during those
interviews. However, the General Manager would interview the
applicant alone, after our joint interview, and the General Manager
made the hiring decisions.
(Second Decl. ¶ 23) (emphasis added). That Rodriguez does not have authority to
hire employees at the College Park Restaurant is consistent with another Current
Assistant Manager’s statement that she did not have authority to hire employees at
the College Park Restaurant. (See Kimberly Lawson Decl. [20.1 at 56-58] ¶ 9).
15
aspect of the restaurant’s operations.” (Second Decl. ¶ 20). That Rodriguez states
in his Second Declaration that he “check[s] on the other employees and crew
member[s] to make sure they are following the detailed practices and procedures
set forth in Zaxby’s manuals,” is consistent with his previous statement about
coaching Crew Members and providing leadership. Rodriguez’s statements are
also consistent with other Current Assistant Managers’ testimony that they ensure
that Crew Members are performing their duties in accordance with the Restaurant’s
policies and procedures. (See, e.g., McThay Decl. ¶ 6; LafFleur Decl. ¶ 4; Kyle
Decl. ¶ 3; Hightower Decl. ¶ 3; Borden ¶ 3).10
In his First Declaration, Rodriguez also states that his “duties primarily
concern running the daily operations of [the] store,” that he “give[s] Crew
10
It is not surprising that a franchise restaurant would have detailed manuals
governing its operations and require all employees—managerial and
non-managerial alike—to adhere to those procedures. That Defendants have
detailed instructions and guidelines does not mean that employees never exercise
discretion or independent judgment. See Donovan v. Burger King Corp., 675 F.2d
516, 521-522 (2d Cir. 1982) (assistant managers in fast food restaurants exercised
discretion sufficient for managerial exemption even though their duties were
“circumscribed by prior instruction” and “detailed guidelines;” although
“adherence by assistant managers to a remarkably detailed routine is critical to
commercial success,” “judgments must still be made” because “the wrong number
of employees, too many or too few supplies on hand, delays in service, the
preparation of food which must be thrown away, or an underdirected or
undersupervised work force all can make the difference between commercial
success and failure”); Roe-Midgett v. CC Servs., Inc., 512 F.3d 865, 875 (7th Cir.
2008) (claims adjusters exercised discretion even though manuals and estimating
software guided their work; finding “independent judgment is not foreclosed by the
fact that an employee’s work is performed in accordance with strict guidelines”).
16
Members direction throughout [his] shifts,” and that he “enjoy[s] discretion in
placing Crew Members at the posts where [he] believe[s] they should be placed.”
(First Decl. ¶ 3). In his Second Declaration, Rodriguez now claims that he is
“partly responsible for making sure that the customers are satisfied with their food
and service,” but his “primary duties are to cook and serve the food and to make
sure that the restaurant is clean.” (Second Decl. ¶ 19) Rodriguez also states that,
although he performs some administrative tasks, they take less than an hour to
complete. (Id.). Rodriguez does not, however, disclaim his role in scheduling
Crew Members’ work hours and determining their work stations based on his
assessment of their skills and performance. (See First Decl. ¶¶ 3-5). That
Rodriguez now claims that he “spend[s] the majority of [his] time preparing food
and servicing [sic] customers,” is consistent with the varying amount of time other
Current Assistant Managers spend performing these non-managerial tasks.
The First and Second Rodriguez Declarations support that the tasks
Assistant Managers perform, and time spent doing so, vary from store to store, and
from Assistant Manager to Assistant Manager. Simply put, nothing in the Second
Rodriguez Declaration impacts the Court’s finding that “although Plaintiff and
Norman may be similarly situated to each other, there is no evidence to support
that they are similarly situated to the Current Assistant Managers.” (June 23rd
17
Order at 37). The Second Rodriguez Declaration does not provide a basis for the
Court to reconsider its June 23rd Order. Plaintiff’s Motion to Supplement, and her
Motion for Reconsideration, are denied.
3.
Motion to Exclude and Request for Attorneys’ Fees and Costs
Having denied Plaintiff’s Motion to Reconsideration and Motion to
Supplement, the Court does not reach the merits of Defendants’ argument that the
Second Rodriguez Declaration is a sham affidavit, and Defendants’ “Motion to
Exclude the Second Rodriguez Declaration is denied as moot.
In their Motion to Exclude, Defendants also seek an award of attorneys’ fees
and costs, under 28 U.S.C. § 1927, against Plaintiff’s counsel for filing the Motion
to Supplement. 28 U.S.C. § 1927 authorizes an award of “excess costs, expenses
and attorneys’ fees reasonably incurred because of” conduct that “so multiplies the
proceedings in any case unreasonably and vexatiously.” 28 U.S.C. § 1927. “[A]n
attorney multiples proceedings unreasonably and vexatiously within the meaning
of [§ 1927] only when the attorney’s conduct is so egregious that it is tantamount
to bad faith.” Amlong & Amlong, P.A. v. Denny’s, Inc., 500 F.3d 1230, 1239
(11th Cir. 2007).
Here, Plaintiff’s counsel failed to interview Rodriguez during the discovery
period and did not show why they waited until July 17, 2015, to obtain the Second
18
Rodriguez Declaration. It is troubling that, more than three (3) weeks after the
Court issued its June 23rd Order, Plaintiff’s counsel procured the Second
Rodriguez Declaration, solely in the hope that it would cast doubt on the other
twelve (12) declarations and cause the Court to reconsider its denial of conditional
certification.11 That counsel waited nearly two (2) more weeks—during which
time the twenty-eight day period within which to seek reconsideration expired—to
file the Motion to Supplement, based on the “newly discovered” Second Rodriguez
Declaration, further delayed the processing of this case. The conduct of Plaintiff’s
counsel—and indeed, much of the conduct of all of the attorneys involved
11
Most of the Second Rodriguez Declaration, and Plaintiff’s Motion to
Supplement, focus on whether Rodriguez and the other Current Assistant
Managers were “properly informed of the instant dispute and their rights to join
this case.” In its June 23rd Order, the Court specifically addressed this argument:
To the extent Plaintiff argues that the Court should not consider the
Current Assistant Managers’ declarations because the declarants do not
state whether they received “a full disclosure about this case and that the
information provided was provided voluntarily and not under duress,”
the Court considers only the declarants’ statements regarding their job
duties, to evaluate whether they and Plaintiff are similarly situated.
(June 23rd Order at 30 n.10). That the Court declined to conditionally certify this
as a collective action does not affect the ability of an employee to prosecute, in
their own name, claimed FLSA violations. Plaintiff’s counsel’s argument that,
because one of the thirteen (13) Current Assistant Mangers now claims that his
First Declaration contains “inaccurate statements” and he felt “pressured” to sign
it, “the rest of Defendant’s declarations are so inherently unreliable” that the Court
should disregard them and grant conditional certification, shows counsel’s myopic
view of this litigation and supports that their focus consistently has been expanding
this case into a collective action, rather than prosecuting Plaintiff’s relatively
straightforward claims.
19
throughout this litigation—shows suspect professional judgment and has
unnecessarily burdened the parties and the Court. The Court concludes, albeit
reluctantly, that the record is not sufficient to support that Plaintiff’s counsel
“unreasonably and vexatiously” multiplied the proceedings, or acted in bad faith,
by filing the Motion to Supplement. See 28 U.S.C. § 1927; Amlong, 500 F.3d at
1239; see also Byrne v. Nezhat, 261 F.3d 1075, 1106 (11th Cir. 2001) (court has
the inherent power to impose sanctions against attorneys or clients, or both, who
act “‘in bad faith, vexatiously, wantonly, or for oppressive reasons’”) (quoting
Chambers v. NASCO, Inc., 501 U.S. 32, 45-46 (1991)), abrogated on other
grounds by Bridge v. Phoenix Bond & Indem. Co., 553 U.S. 639 (2008).
Defendants’ request for attorneys’ fees and costs, contained in its Motion to
Exclude, is denied.
III.
CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Plaintiff’s Motion for Reconsideration
[143], and Motion to Supplement the Record on Conditional Certification [145],
are DENIED.
IT IS FURTHER ORDERED that Defendants’ Motion to Exclude or in
the Alternative Motion to Strike the July 17, 2015, Declaration of Jonathan
Rodriguez [148] is DENIED.
20
SO ORDERED this 24th day of February, 2016.
_______________________________
WILLIAM S. DUFFEY, JR.
UNITED STATES DISTRICT JUDGE
21
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