US Department of Labor v. Five M's, LLC et al

Filing 35

OPINION AND ORDER: GRANTING 33 MOTION for Leave to File Declarations Instanter by Plaintiff United States Department of Labor and 34 MOTION for Leave to File Sur-Reply to Department of Labor's Motion to Strike Affidavit of Neal Guirarelli and New Evidence Raised by Department of Labor by Defendants Five M's, LLC, John Morgavan, R-Way Inc. Defendants' Sur-Reply is to be filed within 10 days of the date of this Order. Signed by Judge William C Lee on 12/28/2016. (lhc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
THOMAS E. PEREZ, Secretary of Labor,
United States Department of Labor,

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Plaintiff,
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v.
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FIVE M’S, LLC, and Indiana Limited Liability )
Company d/b/a PREMIER AUTO, PREMIER )
AUTO SALES, and VALPARAISO
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TRANSMISSION a/k/a VALPARAISO CAR )
CARE AND TRANSMISSION, R-WAY, INC.,)
an Indiana Corporation d/b/a L&W AUTO
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SALVAGE, and JOHN MORGAVAN,
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an Individual,
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Defendants.
)

CIVIL NO. 2:15cv176

OPINION AND ORDER
This matter is before the court on a “Motion for Leave to File Declarations Instanter”,
filed by the plaintiff, Thomas E. Perez, Secretary of Labor, United States Department of Labor
(“DOL”), on September 19, 2016. The Defendants have not filed a response to the motion.
Also before the court is a “Defendants’ Motion for Leave to File Sur-Reply to
Department of Labors’s Motion to Strike Affidavit of Neal Guirarelli and New Evidence Raised
by Department of Labor, filed by the defendants on October 5, 2016. The DOL has not filed a
response to the motion.
Discussion
The DOL has brought a complaint against the defendants alleging various violations of
the Fair Labor Standards Act (“FLSA)”. The following facts are relevant to the DOL’s motion for
leave to file declarations. On August 1, 2016, The DOL filed its motion for summary judgment

against Defendants [Doc. 24]. On September 1, 2016, Defendants filed a response. [Doc. 27]
Defendants also filed a Motion to Strike Portions of the Declaration of Nancy Alcantara [Doc.
26]. Attached to the DOL’s reply to the motion for summary judgment, as well as to its Response
to Defendant’s Motion to Strike Portions of the Declaration of Nancy Alcantara, is an Amended
Declaration of Nancy Alcantara and a Revised Declaration of Nadine Walter. Alcantara is the
Wage and Hour Investigator who conducted the investigation of the Defendants. Walter is one of
Defendants’ former employees. Also attached to the DOL’s reply to summary judgment and
response to motion to strike are eight new Declarations obtained from Defendants’ former
employees: Robert Aubin, Don Pavichevich, James Wilhelm, Thomas Bade, Robert Gale, Dan
Gresham, Caleb Naasko, and Marcus Rogers. The DOL also submitted the Declarations of
Marian Nicksich and Laura Plonka, the Wage and Hour personnel who were involved with the
Defendants in Wage and Hour’s 2005 investigation of Defendant Valparaiso Transmission and
its 2012 conciliation involving Defendant L&W Auto Salvage and Defendant Morgavan.
This court is permitted under Federal Rule of Civil Procedure 56(e)(1) to consider
supplementary declarations:
If a party fails to properly support an assertion of fact or fails to
properly address another party's assertion of fact as required by Rule
56(c), the court may:
(1) give an opportunity to properly support or address the fact;
(2) consider the fact undisputed for purposes of the motion;
(3) grant summary judgment if the motion and supporting materials-including the facts considered undisputed--show that the movant is
entitled to it; or
(4) issue any other appropriate order.
FED. R. CIV. P. 56(1)-(4) (emphasis added). The DOL claims that the Amended Declaration of

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Nancy Alcantara serves to support its findings of FLSA violations and back wage calculations.
The DOL states that the Amended Declaration is substantially the same as Alcantara’s previous
Declaration and does not prejudice the Defendants. The DOL further states that the Declarations
of Defendants’ former employees serve to properly support the facts regarding hours worked by
Defendants’ employees. The DOL maintains that these Declarations also do not prejudice
Defendants. The DOL states that the Defendants are aware of the DOL’s position of using a 47hour workweek for L & W Auto Salvage and a 50-hour workweek for Valparaiso Transmission
in the back wage calculations. The DOL further states that the Declarations of the retired Wage
and Hour personnel involved in the previous investigation and conciliation confirm the findings
of those previous investigations. The DOL contends that all of these Declarations contain
admissible evidence that does not prejudice Defendants and clarifies the summary judgment
record and that striking these Declarations would be an unduly harsh sanction. See Lewis v. Bay
Indus., Inc., 51 F. Supp. 3d 846, 852–53 (E.D. Wis. 2014) (concluding that granting a motion for
leave to file supplemental declarations “was appropriate, as striking the declarations would be an
unduly harsh sanction” where defendant suffered no prejudice and plaintiff obtained
supplemental declarations promptly).
As noted above, there have been no objections to the filing of the Declarations covered by
the instant motion. Accordingly, as the law fully supports the granting of the motion to file, the
DOL’s motion will be granted.
Next, the court will address the Defendants’ motion for leave to file sur-reply to the
motion to strike the affidavit of Neal Guirarelli and new evidence raised by the DOL. As noted
above, the DOL filed a motion for summary judgment on August 1, 2016. The Defendants filed
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their response to the motion for summary judgment on September 1, 2016. The Defendants’
motion for summary judgment included an affidavit from Neal Guirarelli. The Defendants also
filed a motion to strike the affidavit of Nancy Alcantara, which the DOL filed in support of their
motion for summary judgment. On September 19, 2016, the DOL filed their reply in support of
their motion for summary judgment. The DOL included 13 new exhibits, including 10 new
affidavits that were not included in the DOL’s original motion for summary judgment. The DOL
also included two revised affidavits from Nadine Walter and Nancy Alcantara, which were
included in the DOL’s original motion for summary judgment. Additionally, on September 19,
2016, the DOL also filed a motion to strike the affidavit of Neal Guirarelli. Further, the DOL
filed a response to the Defendants’ Motion to Strike the declaration of Nancy Alcantara. The
response included 12 affidavits.
The ability to file a sur-reply may be gained only be leave of the court and by the
showing of some factor that justifies deviation from the rule. Taylor v. Lifetouch National School
Studios, Inc., 490 F. Supp. 2d 944, 950 (N.D. Ind. 2007). Seeking permission [to file a sur-reply]
is not a mere technicality to be overlooked. Goltz v. University of Notre Dame Du Lac, 177
F.R.D. 638, 642 (N.D. Ind. 1997). The Defendants argue that a sur-reply should be allowed in
this case because the DOL filed a motion strike the affidavit of Neal Guirarelli, the DOL
included 13 new exhibits in their reply brief, and 12 new exhibits in response to the Defendants’
motion to strike the declaration of Nancy Alcantara.
As noted above, the DOL has not filed an objection to the defendants’ motion. In light of
the large amount of new evidence submitted by the DOL in their reply to their motion for
summary judgment, the court will grant the Defendants leave to file a sur-reply. The sur-reply is
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to be filed within 10 days of the date of this Order.
Conclusion
On the basis of the foregoing, Perez’ Motion for Leave to File Declarations Instanter [DE
33] is hereby GRANTED. Also, the Defendants’ Motion for Leave to File Sur-Reply [DE 34] is
also hereby GRANTED. Defendants’ Sur-Reply is to be filed within 10 days of the date of this
Order.

Entered: December 28, 2016.

s/ William C. Lee
William C. Lee, Judge
United States District Court

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