Spears v. Mid-America Waffles, Inc. et al

Filing 125

MEMORANDUM AND ORDER denying 85 Plaintiff's Motion for Reconsideration. Signed by District Judge Carlos Murguia on 5/14/2012. (jw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

JARED SPEARS AND LEE ELROD,
individually and on behalf of all others
similarly situated,

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Plaintiffs,
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v.
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MID-AMERICA WAFFLES, INC.
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d/b/a WAFFLE HOUSE, OZARK
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WAFFLES, LLC, WH CAPITAL, LLC,
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WAFFLE HOUSE, INC., DAVID HUFF,
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MICHAEL CALEY AND PEGGY CALEY, )
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Defendants.
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Case No. 11-2273-CM

MEMORANDUM AND ORDER
Plaintiffs Jared Spears and Lee Elrod, former servers at defendants’ restaurants, bring this
putative collective and class action against defendants, claiming that defendants regularly failed to pay
them minimum wage because of inaccurate tip computations. Plaintiffs also claim that they spent
significant amounts of time performing non-tip-producing activities, and that they should have been
compensated at the applicable minimum wage rate for those activities. In addition, they contend that
defendants improperly applied wage deductions for meal credits, drawer shortages, and broken dishes.
Plaintiffs claim that defendants’ practice violated the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §
201 et seq., and the Kansas Wage Payment Act (“KWPA”), Kan. Stat. Ann. § 44-313 et seq.
In October 2011, plaintiffs sought leave to file a second amended complaint. The court granted
the motion in part and denied it in part. The matter is now before the court on Plaintiffs’ Motion for

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Reconsideration (Doc. 85) regarding the court’s denial of leave to amend to add a claim for minimum
wages under the KWPA. Defendants initially failed to respond to plaintiffs’ motion. Around the time
a response was due, however, the case was in flux; one of the defendants was filing for bankruptcy
protection, and the parties began briefing whether to stay the proceedings. The court denied the
motions to stay the proceedings on March 8, 2012, and ordered defendants to show cause why the
motion to reconsider should not be granted as unopposed on March 30, 2012. Defendants timely
responded to the court’s order. Upon review of their responses, the court determines that they have
shown cause why the motion should not be granted as unopposed. The court now takes up the motion
on its merits.
Whether to grant or deny a motion for reconsideration is committed to the court’s discretion.
GFF Corp. v. Assoc. Wholesale Grocers, Inc., 130 F.3d 1381, 1386 (10th Cir. 1997); Hancock v. City
of Okla. City, 857 F.2d 1394, 1395 (10th Cir. 1988). In exercising that discretion, courts generally
recognize three major grounds justifying reconsideration: (1) an intervening change in controlling law;
(2) availability of new evidence; and (3) the need to correct clear error or prevent manifest injustice.
See Marx v. Schnuck Mkts., Inc., 869 F. Supp. 895, 897 (D. Kan. 1994) (citations omitted); D. Kan.
Rule 7.3 (listing three bases for reconsideration of order); see also Sithon Maritime Co. v. Holiday
Mansion, 177 F.R.D. 504, 505 (D. Kan. 1998) (“Appropriate circumstances for a motion to reconsider
are where the court has obviously misapprehended a party’s position on the facts or the law, or the
court has mistakenly decided issues outside of those the parties presented for determination.”). “A
party’s failure to present its strongest case in the first instance does not entitle it to a second chance in
the form of a motion to reconsider.” Sithon, 177 F.R.D. at 505. And a motion to reconsider is not a
proper place to reargue arguments that the court previously rejected. See Servants of Paraclete v.
Does, 204 F.3d 1005, 1012 (10th Cir. 2000).

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Plaintiffs contend that relief is warranted to correct clear error. Plaintiffs claim that the court
incorrectly relied on a footnote in Garcia v. Tyson Foods, Inc., 776 F. Supp. 2d 1167 (D. Kan. 2011),
when it held that plaintiffs could not pursue minimum wage claims under the KWPA. In support of
their position, plaintiffs now argue that the court’s ruling contravenes the plain statutory language of
the KWPA.
When defendants first argued that plaintiffs could not pursue KWPA claims for minimum wage
violations, plaintiffs responded to the argument in just under one page of text. (See Doc. 81 at 10.)
Plaintiffs only argued that Garcia authorized their claims. The court rejected plaintiffs’ position, and
plaintiffs now raise a plain language/statutory construction argument. In doing so, plaintiffs attempt to
use a motion to reconsider as a second opportunity to present a winning argument. As noted in the
paragraph above, a party should not wait to raise its strongest argument until a motion to reconsider.
Sithon, 177 F.R.D. at 505. Plaintiffs’ arguments would have been properly raised in reply to their
motion to amend, but are untimely now. Plaintiffs have not shown that the court committed clear error
in its ruling on their motion to amend.
IT IS THEREFORE ORDERED that Plaintiffs’ Motion for Reconsideration (Doc. 85) is
denied.
Dated this 14th day of May, 2012, at Kansas City, Kansas.

s/ Carlos Murguia
CARLOS MURGUIA
United States District Judge

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