Marshall et al v. Amsted Industries Inc et al

Filing 260

ORDER re Final Pretrial Conference, MOOTING 246 MOTION in Limine filed by Richard Whitby, Chester Marshall. See Order for details. Signed by Magistrate Judge Donald G. Wilkerson on 2/15/13. (Attachments: # 1 Draft Final Pretrial Order)(sgp)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF ILLINOIS
CHESTER MARSHALL and
RICHARD WHITBY
Plaintiffs,
v.
AMSTED RAIL COMPANY, INC.,
Defendant.

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Case No. 3:10-cv-11-DJW

FINAL PRETRIAL ORDER
This matter is before the Court for a Final Pretrial Conference held pursuant to
Rule 16 of the Federal Rules of Civil Procedure:
COUNSEL FOR PLAINTIFFS:
Richard M. Paul III
Ashlea Schwarz
Stueve Siegel Hanson LLP
460 Nichols Road, Suite 200
Kansas City, Missouri 64112
Tele: 816-714-7100

Mark Potashnick
Weinhaus & Potashnick
11500 Olive Boulevard, Suite 133
St. Louis, Missouri 63141
Tele: 314-997-9150

COUNSEL FOR DEFENDANT:
Donald Prophete
Ogletree Deakins Nash Smoak & Stewart P.C.
4717 Grand Avenue, Suite 300
Kansas City, Missouri 64108
Tele: 816-471-1301
Michael Ray
Ogletree Deakins Nash Smoak & Stewart P.C.
155 N. Walker Drive, Suite 4300
Chicago, Illinois 60606
Tele: 312-558-1220

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I. NATURE OF THE CASE
This case involves a claim for unpaid wages under the Fair Labor Standards Act.
Defendant Amsted Rail Company manufactures freight cars and locomotive
components at its steel foundry and manufacturing facility in Granite City, Illinois.
In this case, Chester Marshall and Richard Whitby allege that they were paid based
on their scheduled shifts rather than the time they actually spent working, and that
they were not paid for the time they spent working before and after their scheduled
shifts. Plaintiffs seek their unpaid regular and overtime wages. Amsted denies
Plaintiffs’ allegations.
II. JURISDICTION
A. This is an action for damages.
B. The jurisdiction of the Court is not disputed and is based on the federal
question statute, 28 U.S.C. § 1331 and 29 U.S.C. § 216(b).
III.

UNCONTROVERTED FACTS

The following facts are stipulated to by the parties:
1. Defendant Amsted Rail Company is a steel and train parts manufacturing
company that operates the foundry and manufacturing facility at issue in
this case, in Granite City, Illinois.
2. Plaintiff Chester Marshall has been employed by Amsted during the
applicable statute of limitations as an hourly-paid chipper, leadman, and
foreman/instructor.
3. Plaintiff Richard Whitby was formerly employed by Amsted during the
applicable statute of limitations as an hourly-paid chipper inspector, laborer,
and mold processor.
4. During the times at issue in this case, Amsted classified Plaintiffs as nonexempt, hourly employees.
5. Plaintiffs are employees covered by the Fair Labor Standards Act.
IV.

AGREED TO ISSUES OF LAW
The parties agree that the following are the issues to be decided by the Court:
1. Whether Plaintiffs are entitled to liquidated damages.
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2. The proper calculation of purported overtime damages, specifically:
a. The proper divisor for calculation of the regular rate (i.e. whether it is
the amount of time Plaintiffs contend they worked--clock ring hours—
or the amount of time Plaintiffs were paid for).
b. Whether any alleged damages should be computed at .5 times the
regular rate—the “half-time”—or whether they should be calculated at
1.5 times the regular rate; and
c. Whether and to what extent Plaintiffs can claim damages for time worked in
weeks where the clock rings reflect that they worked for more than 40 hours but
where Defendant’s pay record reflects that they were paid for working under 40
hours.
V. WITNESSES
A. List of witnesses plaintiffs expect to call, including experts:
1.
2.
3.
4.
5.
6.
7.
8.

Robert Offerman, expert witness
Chester Marshall
Richard Whitby
Aaron Brookins
Wayne Luce
Peggy Reynolds
Chris Dockery
Any witnesses identified by Defendant

B. List of witnesses defendant expects to call, including experts:1
1. Wayne Luce
2. Peggy Reynolds
3. Chris Dockery
4. Matt Modrovsky, supervisor
5. Kevin Jordan , supervisor
6. Joel Grinston, supervisor
7. Neil Huff, supervisor
8. George Smith, supervisor
9. Ed Self, supervisor
10. Ralph Gore
11. Larry Watson

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In the event that any of Defendant’s witnesses are unavailable to testify pursuant to Fed. R. Civ. P. 32(b)(4),
Defendant will request that the Court allow portions of depositions transcripts to be read into the record at trial.

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12. Lenroy Johnson
13. John Logan
C. Rebuttal witnesses. Each of the parties may call such rebuttal witnesses
as may be necessary, without prior notice to the other party.
VI.

EXHIBITS

The parties’ Pretrial Exhibit Stipulation is attached hereto as Appendix 1.
VII.

DAMAGES

An itemized statement of the back wages sought by Plaintiffs is attached hereto
as Appendix 2. In addition, Plaintiffs seek liquidated damages equal to the amounts
shown on Appendix 2, plus attorneys’ fees and costs.
VIII. BIFURCATED TRIAL
The parties do not seek a bifurcated trial.
IX.

TRIAL BRIEFS

Trial briefs shall be filed by February 20, 2013.
X. LIMITATIONS, RESERVATIONS, AND OTHER MATTERS
A. Trial Date. Trial of this cause is set for February 25-27, 2012.
B. Length of Trial. The probable length of trial is 3 days. The case will be listed
on the trial calendar to be tried when reached.
Mark Appropriate Box:

JURY. . . . . . . . .__X__
NON-JURY. . . . ____

C. Number of Jurors. There shall be a minimum of eight jurors.
D. Jury Voir Dire. The Court will conduct voir dire. Parties may conduct voir
dire but are limited to 15 minutes.
E. Jury Instructions. All jury instructions shall be submitted as directed by the
presiding judge and a copy delivered to opposing counsel.
This Final Pretrial Order may be modified at the trial of the action or before to
prevent manifest injustice or for good cause shown. Such modification may be made
either on application of counsel for the parties or by the Court on its own.
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IT IS SO ORDERED.
DATED: February __, 2013

___________________________
Donald G. Wilkerson
United States Magistrate Judge

COUNSEL FOR PLAINTIFFS:
_________________________________
Richard M. Paul III
Ashlea Schwarz
Stueve Siegel Hanson LLP
460 Nichols Road, Suite 200
Kansas City, Missouri 64112
Tele: 816-714-7100

____________________________
Mark Potashnick
Weinhaus & Potashnick
11500 Olive Boulevard, Suite 133
St. Louis, Missouri 63141
Tele: 314-997-9150

COUNSEL FOR DEFENDANT:
_________________________________
Donald Prophete
Ogletree Deakins Nash Smoak & Stewart P.C.
4717 Grand Avenue, Suite 300
Kansas City, Missouri 64108
Tele: 816-471-1301
_________________________________
Michael Ray
Ogletree Deakins Nash Smoak & Stewart P.C.
155 N. Walker Drive, Suite 4300
Chicago, Illinois 60606
Tele: 312-558-1220

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