Tagupa v. VIPDesk, Inc. et al

Filing 81

ORDER DENYING DEFENDANT VIPDESK, INC.'S MOTION FOR RECONSIDERATION, DOC. NO. 79 . Signed by JUDGE J. MICHAEL SEABRIGHT on 9/17/2015. (afc)WRITTEN ORDER denies VIPDESK, Inc.'s Motion for Reconsideration of order, doc. n o. 76 : The ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT VIPDESK, INC.'S MOTION FOR SUMMARY JUDGMENT. CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII

LOTTIE K. TAGUPA, individually
and on behalf of all others similarly
situated,

)
)
)
)
Plaintiff,
)
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vs.
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VIPDESK, INC.; JOHN DOES 1-10, )
DOE ENTITIES 1-10,
)
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Defendants.
)
_______________________________ )

CIV. NO. 13-00428 JMS-KSC
ORDER DENYING DEFENDANT
VIPDESK, INC.’S MOTION FOR
RECONSIDERATION, DOC. NO. 79

ORDER DENYING DEFENDANT VIPDESK, INC.’S MOTION FOR
RECONSIDERATION, DOC. NO. 79
I. INTRODUCTION
On August 28, 2015, this court granted summary judgment in favor of
Defendant VIPdesk, Inc. (“VIPdesk”) as to Plaintiff Lottie K. Tagupa’s
(“Tagupa”) claim for a violation of the Hawaii Whistleblower Protection Act,
Hawaii Revised Statutes (“HRS”) § 378-62, but denied summary judgment as to
most aspects of Tagupa’s claim for violations of the Fair Labor Standards Act
(“FLSA”), 29 U.S.C. § 201 et seq. See Doc. No. 76 (“August 28 Order”); Tagupa
v. VIPdesk, Inc., ___ F. Supp. 3d ___, 2015 WL 5116943 (D. Haw. Aug. 28,
2015). VIPdesk now moves for reconsideration of the August 28 Order, again

seeking summary judgment on the FLSA claim. It contends that this court’s
“failure to acknowledge [three pieces of evidence] and its consequences
constitutes clear error.” Doc. No. 79-1, Def.’s Mot. at 2. The court disagrees -VIPdesk’s Motion for Reconsideration is DENIED.
II. STANDARD OF REVIEW
Local Rule 60.1 allows a party to file a motion for reconsideration of
an interlocutory order. Reconsideration is permitted only where there is
“(a) Discovery of new material facts not previously available; (b) Intervening
change in law; [or] (c) Manifest error of law or fact.” LR 60.1; see also School
Dist. No. 1J, Multnomah Cty., Or. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir.
1993) (“Reconsideration is appropriate if the district court (1) is presented with
newly discovered evidence, (2) committed clear error or the initial decision was
manifestly unjust, or (3) if there is an intervening change in controlling law.”)
(citation omitted). “There may also be other, highly unusual, circumstances
warranting reconsideration.” ACandS, Inc., 5 F.3d at 1263.
A “motion for reconsideration must accomplish two goals. First, a
motion for reconsideration must demonstrate reasons why the court should
reconsider its prior decision. Second, a motion for reconsideration must set forth
facts or law of a strongly convincing nature to induce the court to reverse its prior
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decision.” Donaldson v. Liberty Mut. Ins. Co., 947 F. Supp. 429, 430 (D. Haw.
1996). Mere disagreement with a previous order is an insufficient basis for
reconsideration, and reconsideration may not be based on evidence and legal
arguments that could have been presented at the time of the challenged decision.
See Haw. Stevedores, Inc. v. HT & T Co., 363 F. Supp. 2d 1253, 1269 (D. Haw.
2005). “Whether or not to grant reconsideration is committed to the sound
discretion of the court.” White v. Sabatino, 424 F. Supp. 2d 1271, 1274 (D. Haw.
2006) (quoting Navajo Nation v. Confederated Tribes & Bands of the Yakima
Indian Nation, 331 F.3d 1041, 1046 (9th Cir. 2003)).
III. DISCUSSION
The August 28 Order denied VIPdesk’s Motion for Summary
Judgment on most aspects of Tagupa’s FLSA overtime claim because the record
contained genuine issues of material fact as to two categories of Tagupa’s time:
(1) time allegedly spent on work-related matters such as driving to locations,
waiting in line, and computer/technical issues; and (2) time allegedly spent
working on “some fifty two blogs that were apparently never actually submitted to
VIDdesk, and for other blogs that she claims to have been preparing.” Doc. No.

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76, August 28 Order at 40; Tagupa, 2015 WL 5116943, at *16.1 VIPdesk argues
on reconsideration that the court failed to consider (or at least acknowledge)
certain evidence indicating that VIPdesk had no knowledge of her alleged
overtime work (i.e., Tagupa’s admissions that the blog work for the 52 entries was
never submitted, and that she did not comply with a policy requiring permission
from her supervisor before working overtime). If the court had considered this
evidence, VIPdesk contends, the court should have granted its motion, and its
failure to do so was clearly erroneous. Doc. No. 79-1, Def.’s Mot. at 6-7.
But the court did consider the evidence that Tagupa had not actually
submitted the 52 blog entries at issue, and that she had not sought permission from
her supervisor before working overtime hours. As the court explained, however,
the record is unclear -- construing the evidence in the record in favor of Tagupa -when VIPdesk knew (or should have known) that Tagupa was working overtime.
VIPdesk argued several times that it was unaware of Tagupa’s hours until “after
the fact” or “well after the fact,” Doc. No. 63-1, Def.’s Mot. Summ. J. at 3, 8, 10,
11; see also Doc. No. 64-1, Ornellas Decl. ¶ 4, and it remains unclear when that
was. There is also evidence that VIPdesk “suffered or permitted” at least some of

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The court also granted summary judgment on the FLSA claim in favor of VIPdesk to
the extent it could have been based on hours spent regarding 14 or 15 blog entries that were
submitted to VIPdesk in approximately June 2010.
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the alleged overtime hours, and may have had reason to know of Tagupa’s claim
earlier. See Doc. No. 76, August 28 Order at 33, 39; Tagupa, 2015 WL 5116943,
at **13-16.
More important, it remains a question of fact when VIPdesk should
have known (i.e., had constructive notice) of Tagupa’s alleged overtime work.
See, e.g., Forrester v. Roth’s I.G.A. Foodliner, Inc., 646 F.2d 413, 414 (9th Cir.
1981) (“[A]n employer who knows or should have known that an employee is or
was working overtime must comply with [the FLSA].”) (emphasis added); Kellar
v. Summit Seating Inc., 664 F.3d 169, 177 (7th Cir. 2011) (“[T]he FLSA stops
short of requiring the employer to pay for work it did not know about, and had no
reason to know about.”) (emphasis added); Porter v. Petroleum Transp., Inc.,
2012 WL 3835075, at *2 (S.D. W. Va Sept. 4, 2012) (“[I]n order to prove that the
employee is ‘employed’ for the purposes of the Act, it is necessary for a plaintiff
to show that his employer had knowledge, either actual or constructive, of his
overtime work.”) (quoting Davis v. Food Lion, 792 F.2d 1274, 1276 (4th Cir.
1986) (emphasis added and brackets omitted).
The record contains ample evidence indicating that VIPdesk
constantly asked Tagupa and others to work on blogs, whether as a “volunteer” on
company time or on their own time. See, e.g., Doc. No. 64-7, Def.’s Ex. E at
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31(“At this time, the Concierge Blog is a purely volunteer project to be done in
your own free time.”). Construing the evidence in the light most favorable to
Tagupa, VIPdesk knew employees were working extra on blogs, and wanted them
to do so. And as set forth in the August 28 Order, Tagupa complained several
times to VIPdesk and to others that she should be paid for work-related matters
such as travel, waiting at the post office, and for computer/technical delays, as
well as for blogging work. Given this evidence, the court did not clearly err in
denying summary judgment to the extent VIPdesk contends it had no actual or
constructive notice that employees (including Tagupa) were working overtime on
blogs.2
It may well be -- as the August 28 Order stated, and as the court told
Plaintiff’s counsel at the hearing -- that Tagupa will have trouble proving her
FLSA claim. It may well be that she has “padded” her time sheets. The court
certainly did not conclude that Tagupa’s FLSA claim (whether for blogging hours
or for travel/waiting/technical time) is solid. But the “record contains sufficient

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VIPdesk seeks, in the alternative, summary judgment in its favor for “all of those
claims for overtime work allegedly performed prior to March 2, 2011,” Doc. No. 79-1, Def.’s
Mot. at 8, which is the earliest date (according to VIPdesk’s interpretation of the August 28
Order) that it could have known of Tagupa’s alleged overtime hours. This request, however, is
improper at this stage -- it amounts to a second Motion for Summary Judgment, based on
findings and reasoning in the August 28 Order itself. The court declines to make such a finding
on a Motion for Reconsideration.
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evidence, construed in Tagupa’s favor, to create a genuine issue of material fact as
to whether Tagupa is entitled to at least some amount of recovery under the
FLSA.” Doc. No. 76, August 28 Order at 42; Tagupa, 2015 WL 5116943, at *17
(citing Brock v. Seto, 790 F.2d 1446, 1448 (9th Cir. 1986)).
IV. CONCLUSION
Defendant VIPdesk, Inc.’s Motion for Reconsideration, Doc. No. 79,
is DENIED.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, September 17, 2015.

/s/ J. Michael Seabright
J. Michael Seabright
United States District Judge

Tagupa v. VIPdesk, Inc., Civ. No. 13-00428 JMS-KSC, Order Denying Defendant VIPdesk,
Inc.’s Motion for Reconsideration, Doc. No. 79

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