Martin v. Coastal Floor Covering, Inc. et al

Filing 40

ORDER denying 18 Motion to Suppress Documents ; denying 20 Motion to Compel; denying 20 Motion for Sanctions; denying 21 Motion to Strike ; denying 23 Motion for Equitable Tolling; denying 24 Motion for Sanctions. Signed by Magistrate Judge G. R. Smith on 7/9/2015. (loh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
CORNELIUS MARTIN,

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Plaintiff,

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V.

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Case No. CV414-030

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COASTAL FLOOR COVERINGS,
INC., and LARRY TOOTLE,

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Defendants.

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REPORT AND RECOMMENDATION
In this Fair Labor Standards Act (FLSA) case, 29 U.S.C. § 201 et

seq., plaintiff Cornelius Martin sues defendants Coastal Floor Coverings,
Inc. (Coastal) and Larry Tootle for unpaid FLSA minimum and overtime
wages. Doe. 1 at 7-8. He also brings a state-law, breach-of-contract
claim for "failing to pay [him] for multiple months."

Id. at 8.

Defendants move (1) under Fed. R. Civ. P. 56 for summary judgment
against Martin's FLSA claims, doe. 15; (2) under Fed. R. Civ. P. 12(b)(1)
to dismiss his state-law, breach-of-contract claim, id.; (3) under Fed. R.
Civ. P. 11 for sanctions because, they contend, Martin advanced a bogus
email in support of his Complaint, doe. 24; and (4) under Fed. R. Civ. P.

37 to compel discovery responses and sanction Martin, who proceeds pro

Se, for his complete failure to respond to discovery. Doe. 20. Martin
moves to "strike" Tootle's affidavit and defendants' motion to dismiss.
Doe. 21. He also moves to "suppress exhibits" attached to their motion
for partial summary judgment. Doe. 18. Finally, he moves for equitable
tolling of FLSA's statute of limitations. Doe. 23.
I. SUMMARY JUDGMENT STANDARDS
The Court will first address defendants' summary judgment motion
against Martin's FLSA claims. Doe. 15. Summary judgment is
appropriate only if "there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law." Fed. R. Civ.
P. 56(a). Facts are "material" if they could affect the outcome of the suit
under the governing substantive law.

Anderson v. Liberty Lobby, Inc.,

477 U.S. 242 7 248 (1986). Since the defendants move for summary
judgment on Martin's FLSA claims, the Court will view all facts and
reasonable inferences in the light most favorable to Martin. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Lucas v. W.W. Grainger,
Inc., 257 F.3d 1249, 1255 (11th Cir. 2001).

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II. BACKGROUND
Plaintiff alleges that Tootle hired him to work at Coastal in
January 2011 "as a business consultant and sales representative," doc. 1
at 4, "at a rate of $12.50 per hour for 40 hours, a total of $500.00 per
week."

Id. at 1. He says that until "June, 22, 2011, [he] worked a

minimum of sixty-two hours every week for [defendants]," for which
defendants failed to pay the minimum or overtime wage.

Id. at 2.

Defendants allegedly last sent plaintiff a paycheck on October 15, 2013,
over two years after his employment with defendants ended. Id. at 2. He
swears "that . . . failure to honor the FLSA by [defendants]" and thus
pay him overtime wages "constitute[s] a willful violation." Id.
Tootle, Coastal's chief executive officer, attests that he first hired
Martin in 2010 while he was incarcerated, but eligible for a work-release
program. Doe. 15-1 at 1-2. After several months, Martin quit.
He returned on January 8, 2011, and Tootle rehired him.

Id. at 2.

Id. at 3. He

and Tootle agreed that Martin could operate his legal-research and car
export businesses from a desk at Coastal, but he "would [also] work for
Coastal as needed and when his personal businesses allowed it." Id.

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For the next several months, Martin ran his own businesses out of
Coastal, occasionally selling floor coverings and earning commissions on
those sales. Doe. 15-1 at 4. "Because of [Martin's] unusual relationship
with Coastal, his running of his own businesses while he was physically
present at Coastal, his interest more in buying Coastal than in working
for Coastal, his working for Coastal only when he chose to do so because
his priority was his own businesses, [Tootle] never thought that
[plaintiff] was an employee subject to the [FLSA]." Id. at 5; doe. 15-2 at
2 (Coastal's general manager: "He worked for Coastal only as needed and
only when his personal business allowed him to."); see also id. at 3
(because of that arrangement, she never thought of him as an employee
subject to FLSA); doe. 15-3 (Coastal's accounting manager's affidavit
echoing the general manager's perception/conclusion).
As for Martin's compensation, says Tootle: "He and I agreed that
Coastal would pay him a sales commission on any floor covering that he
sold. We agreed that Coastal would pay him compensation for the other
work that he did for the business. The compensation was paid in the
form of payment for his lodging at [a local hotel]." Doe. 15-1 at 4.
Martin has submitted no Rule-56-competent rebuttal to this.
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On June 22, 2011 ; FBI agents arrested Martin at Coastal. Doe. 151 at 5. He "was terminated from any business dealing with Coastal that
day" and never returned..

Id. at 5-6. Hence, his commission pay and

"lodging compensation" ended on June 22, 2011.

Id.

Two years and

eight months later, he filed this case. Doe. 1.
III. ANALYSIS
Coastal assumes arguendo that Martin was a formal, full-time
FLSA employee entitled to minimum and overtime wages, but argues
that his FLSA claims are barred by the statute of limitations. Doe. 15 at
6. FLSA minimum wage claims must be brought within two years, or
three if there was "a willful violation." 29 U.S.C. § 255(a); Kaplan v.
Code Blue Billing & Coding, Inc., 504 F. App'x 831, 832 (11th Cir. 2013).
Similarly, "[t]he statute of limitations for claims seeking unpaid
overtime wages generally is two years, but if the claim is one 'arising out
of a willful violation,' another year is added to it. 29 U.S.C. § 255(a)."
Brantley v. Ferrell Elec., Inc., 2015 WL 3541552 at * 24 (S.D. Ga. May 29,
2015); accord Perry v. Zinn Petroleum Companies, LLC, 495 F. App'x
981, 984 n. 3 (11th Cir. 2012).

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"Claims for minimum wage compensation under the FLSA accrue
on the date the employee should have been paid." Maksymowicz v.
Weisman & Calderon, LLP, 2014 WL 1760319 (S.D.N.Y. May 2, 2014)
(quotes and cite omitted). And an unpaid overtime claim "accrues at the
end of each pay period when it is not paid." Martin v. United States, 117
Fed. Cl. 611, 618 (Fed. Cl. 2014). The FLSA is violated "each time the
[employer] issue[s] [the] plaintiff a paycheck that fail [s] to include
payment for overtime hours actually worked . . . . Each failure to pay
overtime constitutes a new violation of the FLSA." Knight v. Columbus,
Ga., 19 F.3d 579, 581 (11th Cir. 1994) (cites omitted). Thus, "[t]he date
of an employee's termination is irrelevant to the limitations period
applicable to FLSA claims alleging a failure to pay overtime wages; the
relevant event triggering the limitations period is instead the date on
which an employee received the paycheck that he alleges failed to
incorporate the overtime wages he was due." Washington v. Carter's
Retail, Inc., 2014 WL 6473673 at * 4 (M.D. Fla. Nov. 18, 2014).
Martin has failed to rebut defendant's summary judgment showing
that he last worked in the year of his arrest (2011) and that he then
received his contemporaneous (motel lodging) payment. Indeed, his own
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Complaint exhibit shows he last worked on June 22, 2011. Doe. 1-2.
Accordingly, his claim accrued in 2011, and absent a willfulness showing,
it is time-barred under the two-year limit. A FLSA violation is "willful"
if the employer knew its conduct violated the statute or acted with
reckless disregard as to whether its conduct was prohibited under the
statute. Reich v. Dept. of Conservation & Natural Res., State of Ala., 28
F.3d 1076, 1084 (11th Cir. 1994); Boyle v. City of Pell, 2015 WL 1883804
at * 3 (N.D. Ala. Apr. 24, 2015). "Courts have found employers willfully
violated FLSA where they ignored specific warnings that they were out
of compliance, destroyed or withheld records to block investigations into
their employment practices, or split employees? hours between two
companies' books to conceal their overtime work."

Hantz v. Prospect

Mortg., LLC, 11 F. Supp. 3d 612, 617 (E.D. Va. 2014).
It is Martin's burden to prove willfulness.

See Ojeda-Sanchez v.

Bland Farms, LLC, 499 F. App'x 897, 902-03 (11th Cir. 2012) (farm
employer's FLSA violation was not willful, as would extend two-year
statute of limitations in seasonal farmworker's suit to three years, since
employer had discharged its FLSA obligations in good faith). It is also
his burden to respond to a supported motion. L.R. 7.5 ("Failure to
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respond within the applicable time period shall indicate that there is no
opposition to a motion.").'
He has done neither. Instead, he rests only on his unverified
Complaint, where he insists Coastal's failure to pay him overtime was
willful. Doe. 1 at 7 ¶ 20 ("Upon information and belief' defendants failed
to keep wage/hour records); id. ¶ 21 ("Defendants acted willfully in
failing to pay the minimum wage required by the FLSA"). But a nonmovant cannot rest on his pleadings when faced with a moving party's
fully supported motion, Celotex Corp. v. Cattrett, 477 U.S. 317, 324
(1986), particularly where, as here, he relies on conclusions. Doe. 1 at 72
The same would be said for rebutting the defendants' Local Rule 56.1 statement,
L.R. 56.1 ("All material facts set forth in the statement required to be served by the
moving party will be deemed to be admitted unless controverted by a statement
served by the opposing party."), had they filed one. They did not.
FLSA plaintiffs, for that matter, routinely cite to FLSA-coverage evidence. See,
e.g., Davila v. Menendez, 717 F.3d 1179, 1185 (11th Cir. 2013) (error to rule for the
employer on the issue of willfulness where the plaintiff introduced evidence that her
employer (1) knew of the hourly wage laws, but failed to investigate whether they
complied with those laws; (2) did not sign a contract with the plaintiff; and (3) did not
record her working hours, among other facts); Swan v. Nick Grp., Inc., 2013 WL
5200508 at * 7 (N.D. Ga. Sept. 13, 2013) (denying the employer's summary judgment
motion on willfulness issue because a reasonable jury could conclude that the
employer was aware of the FLSA and chose not to investigate its applicability to the
plaintiffs, where the evidence showed the employer paid overtime to some employees
but decided not to require the plaintiffs to record their hours). Martin, in contrast,
cites no such evidence. Nor can he rest on his pleadings. Leigh v. Warner Bros., Inc.,
212 F.3d 1210, 1217 (11th Cir. 2000) (conclusory allegations based on subjective
beliefs are insufficient to create a genuine issue of material fact). In fact, Martin has
cited to no Rule-56-competent materials. The "2013" email attached to his
2

Martin moves to "strike" Tootle's affidavit and defendants' motion
to dismiss. Doc. 21 at 4. His motion, however is simply a set of unsworn
irrelevancies. It fails to rebut the defendants' fully supported (i.e., by
sworn affidavits) summary judgment motion. Put another way, Martin
has failed to rebut defendants' showing that he was last compensated in
June 2011, which means his FLSA claims are untimely.
Martins' "Strike" motion (doe. 21) is thus DENIED, and Martin is
reminded of two things. First, to advance personal-knowledge,

materially relevant facts one typically uses a notarized affidavit or a 28
U.S.C. § 1746 Declaration (to declare one's assertions to be true under
penalty of perjury), or otherwise show that the medium conveying those
facts is reducible to admissible evidence.

Macuba v. Deboer, 193 F.3d

1316, 1322-23 (11th Cir. 1999); Smith v. E-Backgroundchecks.com , Inc.,
F. Supp. 3d , 2015 WL 1442677 at * 17 n. 2 (N.D. Ga. Jan. 20,
2015); Dejarnett v. Willis, 976 F. Supp. 2d 1271, 1288 (M.D. Ala. 2013);

see Fed. R. Civ. P. 56(c)(1)(A). Martin has not done that here but has

Complaint, for example, speaks nothing of wages, only a "recap" of money
distributions that are consistent with the car trading business that Tootle swears
Martin ran from his desk. Doe. 1-1. Nor, for that matter, does Martin show how that
email page could be reduced to admissible evidence at trial, and thus be considered on
summary judgment.

instead simply lobbed a mass of unsworn assertions about irrelevant
matters. Doc. 21 at 1-4.
Second, Martin must: (a) abide by all procedural rules, Moon v.

Newsome, 863 F.2d 835, 837 (11th Cir. 1989) ("[O]nce a pro se IFP
litigant is in court, he is subject to the relevant law and rules of court,
including the Federal Rules of Civil Procedure."); and (b) not lie under
oath, either live or "on paper," which is a criminally prosecutable
offense.' See United States v. Roberts, 308 F.3d 1147 1 1155 (11th Cir.
2002) (defendants falsely subscribing to statement in his habeas petition
that he had not previously filed a § 2255 motion was 'material" for
purposes of perjury prosecution; statement fooled the clerk of the court
into accepting the "writ" for filing, and led the magistrate judge to
consider its merits until she discovered that the "writ" was a successive §
2255 motion in disguise); United States v. Dickerson, CR608-36, doe. 1
(S.D. Ga. Dec. 11, 2008) (§ 2255 movant indicted for perjury for
knowingly lying in his motion seeking collateral relief from his
Martin, whose name shows up in various forms in court filings (see, e.g., doe. 18 at 1
("Cornelius Martin")) is a felony-convicted fraudster. See United States v. Martin,
CR411-162 at 1 (federal wire fraud), where he is identified as "Cornelius Coleman
Martin II," id.; see also Martin v. Olens, CV411-279 doe. 16 at 1 (S.D. Ga. July 24,
2012) (recounting Georgia conviction plus then pending Florida charges against him).
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conviction); id., doc. 47 (guilty verdict), cited in Irick v. United States,
2009 WL 2992562 at * 2 (S.D. Ga. Sept. 17, 2009); see also Colony Ins.
Co. v. 9400 Abercorn, LLC, 866 F. Supp. 2d 1376, 1378 n. 2 (S.D. Ga.

2012).
Martin moves for "equitable tolling." Doc. 23. It is DENIED
because he has not met even the basic minimum requirements for that.
To qualify for equitable tolling, the plaintiff must establish that
extraordinary circumstances prevented him from filing his claim on time,
and that he acted with reasonable diligence throughout the period he
seeks to toll. Parada v. Banco Industrial De Venezuela, C.A., 753 F.3d
62 2 71 (2d Cir. 2014). Martin has established neither extraordinary
circumstances nor reasonable diligence.
Finally, it is a matter of judicial discretion whether to exercise
supplemental jurisdiction over any state law claims after all federal
claims have been dismissed. 28 U.S.C. § 1367(a), c); Carlsbad Tech., Inc.
v. HIFBio, Inc., 556 U.S. 635, 641 (2009); Grimshaw v. Metropolitan Life
Ins. Co., 450 F. App'x 886, 886 (11th Cir. 2012). Upon the evaporation of
Martin's federal (FLSA) claims, the Court should decline to retain
" It follows that, any Fed. R. Civ. P. 72(b) Objection from Martin must be supported
by a notarized affidavit or § 1746 Declaration.
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supplemental jurisdiction over, and thus DISMISS WITHOUT
PREJUDICE, Martin's breach of contract claim. Doc. 1 at 8-9. Hence,
it should GRANT defendants' motion to dismiss on that score. Doc. 15
at 20.
IV. CONCLUSION
Defendants therefore are entitled to summary judgment on
Martin's FLSA claims, doc. 15, and thus dismissal of his contract claim
without prejudice. Hence, their motion to dismiss (and for summary
judgment) should be GRANTED. Doc. 15. The Court DENIES
defendants' other motions (does. 20 & 24) without prejudice to renew
them following the district judge's ruling on this Report and
Recommendation.' Plaintiffs various motions are DENIED as baseless.
Does. 18, 21 & 23.
SO REPORTED AND RECOMMENDED this 9day of July,
2015.

UNITE 'S2MAGISTRATE JUDGE
SOUTH RN DISTRICT OF GEORGIA

Should the district judge adopt this R&R, their discovery motion will be moot,
except for the sanctions portion of it. And although their Rule 11 motion also won't
be moot, the defendants nevertheless will have a moment to consider whether further
pursuit (e.g., for a monetary sanctions award) will be worth their effort.
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