Perez v. New Orleans City et al

Filing 155

ORDER & REASONS: ORDERED that Defendants' Motions in Limine (Rec. Doc. 130; Rec. Doc. 145) are GRANTED in part and DENIED in part. IT IS FURTHER ORDERED that Defendants' Motion to Dismiss/Motion for Summary Judgment (Rec. Doc. 116) is GRANTED in part and DENIED in part. IT IS FURTHER ORDERED that Defendants' Motion for Leave to File Reply (Rec. Doc. 154) is DENIED as moot. Signed by Judge Carl Barbier on 3/24/16. (sek)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

CHAD PEREZ, ET AL.

CIVIL ACTION

VERSUS

NO: 12-2280

CITY OF NEW ORLEANS, ET AL.

SECTION: “J”(1)

ORDER AND REASONS
Before the Court are a Motion to Dismiss or, in the Alternative,
Motion for Summary Judgment (Rec. Doc. 116) and two Motions in
Limine (Rec. Doc. 130; Rec. Doc. 145) filed by Defendants, Michael
Harrison, in his official capacity as the Superintendent of the
New Orleans Police Department, Ronal Serpas, and the City of New
Orleans (collectively “Defendants”), and three Oppositions thereto
(Rec. Doc. 143, Rec. Doc. 144; Rec. Doc. 151) filed by Plaintiff,
Chad

Perez,

situated

(“Plaintiff”)

police

officers.

on

behalf

Having

of

a

class

considered

the

of

similarly

motion,

the

parties’ submissions, the record, and the applicable law, the Court
finds, for the reasons expressed below, that the motions should be
GRANTED in part and DENIED in part.
PROCEDURAL HISTORY AND BACKGROUND FACTS
Officer Chad Perez, a former New Orleans Police Officer, brought
this action under the Fair Labor Standards Act ("FLSA"), on his
1

own behalf and on behalf of all similarly situated members of the
NOPD, against the City of New Orleans ("the City") and against
Ronal Serpas in his capacity as Superintendent of the New Orleans
Police Department ("NOPD"). 1 Perez alleges that from September 16,
2009 through the present date, the NOPD has failed to pay him and
other NOPD officers the overtime compensation that was due to them.
Plaintiff challenges the NOPD’s time-keeping system (the “J&T
system”)

on

two

grounds.

First,

Plaintiff

asserts

that

the

scheduled 42.5 hour work week for NOPD officers is in excess of
the forty hours per week threshold for overtime payment established
by the FLSA. (Rec. Doc. 1, at 3, 10.) Second, Plaintiff claims
that the NOPD failed to accurately record officers’ unscheduled
time worked in order to minimize the payment of overtime rates.
Id. at 5-6, 10. Plaintiff also alleged (1) violations of United
States Code, Title 42, Section 1983; (2) retaliation; and (3)
state-law

tort

claims

sounding

in

defamation

and

intentional

infliction of emotional distress (“IIED”).
Upon

Plaintiff’s

motion,

on

April

7,

2014,

this

Court

conditionally certified the class of plaintiffs, defined as “New
Orleans

Police

Department

officers

denied

earned

overtime

On February 11, 2015, Michael Harrison, current NOPD Superintendent,
was added as a defendant. Plaintiff also named NOPD Commander Robert
Norton as a defendant.
2

1

compensation and/or J&T time, beginning September 16, 2009.” (Rec.
Doc. 34, at 6.) Over the next two years, the parties engaged in
extensive, contentious discovery. A jury trial in this matter is
set for April 11, 2016. On March 1, 2016, Defendants filed the
instant Motion to Dismiss. (Rec. Doc. 116.) On March 7, Defendants
filed their first Motion in Limine. (Rec. Doc. 130.) Plaintiff
opposed the motions on March 15, 2016. Defendants received the
Court’s permission to file a reply brief on March 22, 2016. (Rec.
Doc. 153.) Defendants filed a second Motion in Limine, Motion to
Strike, and Motion for Sanctions (Rec. Doc. 145) on March 18.
Plaintiff opposed this motion on March 22. (Rec. Doc. 151.)
PARTIES’ ARGUMENTS
A. Motions in Limine
In their first Motion in Limine, Defendants argue that Plaintiff
should be prohibited from introducing certain evidence. First,
Defendants take issue with documents produced by Plaintiff at the
deposition of Independent Police Monitor (“IPM”) Susan Hutson.
Defendants argue that Plaintiff had not previously disclosed these
documents. Second, Defendants claim that the IPM’s report on NOPD
retaliation policy is not relevant and is not listed on Plaintiff’s
exhibit list. Third, Defendants generally argue that Plaintiff
should not be allowed to introduce any other documents that were
3

not timely produced in accordance with the Court’s scheduling order
and the Federal Rules of Civil Procedure. Finally, Defendants
assert that Ms. Hutson should not be permitted to testify as an
expert witness at trial. Defendants argue that Plaintiff did not
disclose Ms. Hutson as an expert in accordance with Federal Rule
of Civil Procedure 26(a)(2)(A).
In his opposition, Plaintiff argues that Defendants’ motion
fails. First, Plaintiff asserts that he should be allowed to
exchange

documents

with

Defendants

before

trial.

Plaintiff

contends that Defendants may then object to certain documents, and
the Court can rule on the objections at trial. Second, Plaintiff
argues

that

some

documents

are

addressed

to

NOPD

employees,

including the IPM report on the retaliation policy. Thus, Plaintiff
argues that Defendants already have the documents. With respect to
the

documents

Defendants

not

failed

timely
to

produced,

specifically

Plaintiff

identify

argues

such

that

documents.

Plaintiff claims that a broad order excluding the documents would
be inappropriate. Further, with respect to Ms. Hutson’s expert
testimony, Plaintiff points out that a lay witness can give opinion
testimony. Plaintiff also argues that Ms. Hutson may be an expert
witness

who

is

not

required

to

provide

a

report

under

Rule

26(a)(2)(B). Finally, Plaintiff reiterates that the Court should
4

decide these issues at trial, rather than an order ruling on
Defendants’ pre-trial motion.
Defendants’ second Motion in Limine is similar to their first.
Defendants aver that Plaintiff provided them with a second exhibit
list, which contained items that were not included in the exhibit
list

filed

with

the

Court.

Plaintiff’s

list

does

not

Moreover,

adequately

Defendants
describe

claim

each

that

exhibit.

Accordingly, Defendants ask the Court to strike the second exhibit
list, prohibit Plaintiff from introducing any evidence that was
not previously disclosed, and grant Defendants attorneys’ fees and
sanctions.

In

his

opposition,

Plaintiff

argues

that

his

description of each exhibit was satisfactory. Further, Plaintiff
claims

that

the

documents

on

the

list

were

produced

during

discovery and specified on the initial exhibit list.
B. Motion to Dismiss/Motion for Summary Judgment
Defendants raise a number of bases to dismiss Plaintiff’s claims
or to grant Defendants summary judgment. First, Defendants claim
that Plaintiff’s claims against Robert Norton should be dismissed
for insufficient service of process. Defendants contend that Mr.
Norton was never served, which is required by the Federal Rules of
Civil Procedure. Second, Defendants argue that Perez’s retaliation
claim should be dismissed for lack of subject matter jurisdiction.
5

Defendants claim that the Civil Service Commission is the proper
venue for this claim. Further, Defendants argue that they are
entitled

to

summary

judgment

on

this

claim

because

Perez’s

suspension was based on a legitimate, non-retaliatory reason.
Third, Defendants argue that Perez’s Section 1983 claim should
be

dismissed

for

failure

to

state

a

claim.

With

respect

to

Defendant Ronal Serpas, Defendants argue that Perez (1) failed to
plead

the

deprivation

of

a

federal

right

and

(2)

failed

to

demonstrate that Serpas acted with deliberate indifference to the
violation

of

Perez’s

rights.

Further,

Defendants

assert

that

Serpas is entitled to qualified immunity. With respect to the City,
Defendants argue that Perez’s claim should be dismissed because he
failed to demonstrate the existence of a municipal policy that
caused a deprivation of his rights.
Fourth, Defendants argue that Perez’s claim for overtime pay
under the FSLA should be dismissed because he failed to plead
enough facts to establish a claim under the statute. Perez alleged
that NOPD had a policy of not paying for overtime compensation.
However, Defendants argue that Perez did not introduce sufficient
evidence to show how and when these alleged violations occurred.
Alternatively, Defendants claim that they are entitled to summary
judgment on the FLSA claim. According to Defendants, Perez was
6

sufficiently compensated for all unscheduled hours that he worked.
Fifth, Defendants assert that Perez failed to state a claim for
libel because he failed to identify any defamatory statements made
by Defendants. Sixth, Defendants argue that Perez’s IIED claim
should be dismissed because he did not plead “extreme or outrageous
conduct.”
Plaintiff’s opposition does not directly respond to Defendants’
contentions.

Rather,

Plaintiff

raises

several

new

arguments.

First, Plaintiff contends that Defendants already filed a Motion
to Dismiss. (Rec. Doc. 8.) In response, Plaintiff’s complaint was
amended. (Rec. Doc. 13.) Thus, Plaintiff argues that a second
motion to dismiss is inappropriate because he already remedied any
deficiencies in the original complaint. Second, Plaintiff alleges
that the City has admitted that it owes compensation to class
members for unpaid overtime worked. Plaintiff also claims that
class members did not record their overtime hours in the system
for fear of retaliation. Further, Plaintiff suggests that Serpas
knew that the NOPD’s time-keeping system was criminally flawed.
Thus, Plaintiff claims that Serpas is subject to liability under
Section 1983.
Next, Plaintiff addresses the disciplinary complaint (2011-919)
filed against Perez. Plaintiff received a one-day suspension for
7

leaving work early without permission. However, Plaintiff suggests
that

the

suspension

was

given

in

retaliation

for

his

formal

complaint about unpaid overtime. Plaintiff also argues that a
complaint

against

him

was

listed

as

“pending

investigation,”

preventing him from obtaining other law enforcement work after his
resignation.

Further,

Plaintiff

argues

that

he

was

denied

promotion due to the pending complaint and the one-day suspension.
Plaintiff also claims that Serpas implemented the NOPD timekeeping system, “despite numerous warnings of potential criminal
and civil liability for doing so.” (Rec. Doc. 143, at 13.) Thus,
Plaintiff asserts that Serpas willfully and deliberately deprived
Plaintiff of his economic and civil rights.
Defendants

filed

a

reply

memorandum

addressing

Plaintiff’s

opposition. First, Defendants argue that Plaintiff’s FLSA claim
should be dismissed. Defendants point out that federal law provides
that law enforcement employees must work over 86 hours in a twoweek period before they are entitled to overtime pay. According to
Defendants, it is uncontested that Plaintiff and the class members
were only required to work 85.5 hours in a two-week period.
Defendants

also

assert

that

Plaintiff

erroneously

equates

unscheduled hours with overtime. Further, Defendants argue that

8

Plaintiff failed to introduce evidence showing that he is owed
payments for unscheduled hours worked.
Second,

Defendants

address

Plaintiff’s

retaliation

claim.

Defendants argue that Plaintiff failed to establish that the oneday suspension was mere pretext. In addition, Defendants claim
that the Court should discount Ms. Hutson’s deposition testimony
because Defendants have yet to take her deposition. Defendants
also argue that the Civil Service Commission’s ruling is not
relevant because it was based on Louisiana law, not federal law.
Third, Defendants claim that Plaintiff failed to establish a
Section 1983 claim. Defendants attack Plaintiff’s evidence and
emphasize that Plaintiff failed to address their argument that
Serpas is entitled to qualified immunity. Finally, Defendants
point out that Plaintiff did not oppose Defendant’s motion with
respect to his state law defamation and IIED claims.
LEGAL STANDARD
A. Motions in Limine
The Federal Rules of Civil Procedure grant district courts the
power to “control and expedite the discovery process through a
scheduling order.” Barrett v. Atlantic Richfield Co., 95 F.3d 375,
380 (5th Cir. 1996); see FED. R. CIV. P. 16. Rule 16 also allows a
court to exclude expert testimony or strike pleadings if a party
9

fails to comply with deadlines imposed by a scheduling order. FED.
R. CIV. P. 16(f)(1); see FED. R. CIV. P. 37(b)(2)(A). District courts
have broad discretion to award sanctions for violations of pretrial or scheduling orders. Barrett, 95 F.3d at 380. The Fifth
Circuit reviews such sanctions for abuse of discretion. Id. To
determine whether the district court abused its discretion, the
Fifth Circuit considers: “(1) The explanation if any for the
party's

failure

to

comply

with

the

discovery

order;

(2)

The

prejudice to the opposing party of allowing the witness to testify;
(3)

The

possibility

of

curing

such

prejudice

by

granting

a

continuance; (4) The importance of the witnesses' testimony.” Id.
B. Motion to Dismiss/Motion for Summary Judgment
1. Motion to Dismiss
Ordinarily, “[u]nder Rule 12(b)(6), a claim may be dismissed
when a plaintiff fails to allege any set of facts in support of
his claim [that] would entitle him to relief.” Taylor v. Books A
Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002) (citing McConathy
v. Dr. Pepper/Seven Up Corp., 131 F.3d 558, 561 (5th Cir. 1998)).
The standard analysis changes when the defendant fails to timely
file a motion under Rule 12(b)(6):
A motion made under Rule 12(b)(6) that raises the defense
of failure to state a claim upon which relief may be
granted must be made before the service of a responsive
pleading, but according to Rule 12(h)(2) the defense is
10

preserved and may be raised as late as trial. Technically
therefore, a post-answer Rule 12(b)(6) motion is
untimely and the cases indicate that some other vehicle,
such as a motion for judgment on the pleadings or for
summary judgment, must be used to challenge the
plaintiff's failure to state a claim for relief.
5b CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE

AND

PROCEDURE §

1357 (3d ed.) (internal citations omitted). Rule 12 provides that
an argument for failure to state a claim upon which relief can be
granted may be raised by a motion under Rule 12(c). FED. R. CIV. P.
12(h)(2)(B).
Rule 12(c) states, “After the pleadings are closed – but early
enough not to delay trial – a party may move for judgment on the
pleadings.” FED. R. CIV. P. 12(c). However, “[i]f, on a motion under
Rule 12(b)(6) or 12(c), matters outside the pleadings are presented
to and not excluded by the court, the motion must be treated as
one for summary judgment under Rule 56.” FED. R. CIV. P. 12(d). In
this case, Defendants largely did not rely on “matters outside
pleadings” to support their Motion to Dismiss. The Court will
disregard any outside matters cited. Thus, the proper standard to
evaluate Defendants’ Motion to Dismiss is the Rule 12(c) standard.
This standard is identical to the standard for dismissal for
failure to state a claim under Rule 12(b)(6). Johnson v. Johnson,
385 F.3d 503, 529 (5th Cir. 2004).

11

Under the Federal Rules of Civil Procedure, a complaint must
contain “a short and plain statement of the claim showing that the
pleader

is

entitled

to

relief.”

FED. R. CIV. P. 8(a)(2).

The

complaint must “give the defendant fair notice of what the claim
is and the grounds upon which it rests.” Dura Pharm., Inc. v.
Broudo, 544 U.S. 336, 346 (2005). The allegations “must be simple,
concise, and direct.” FED. R. CIV. P. 8(d)(1). To survive a Rule
12(b)(6) motion to dismiss, the plaintiff must plead enough facts
to “state a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially
plausible when the plaintiff pleads facts that allow the court to
“draw the reasonable inference that the defendant is liable for
the misconduct alleged.” Id. “The plausibility standard is not
akin to a ‘probability requirement,’ but it asks for more than a
sheer possibility that a defendant has acted unlawfully.” Id. A
court must accept all well-pleaded facts as true and must draw all
reasonable inferences in favor of the plaintiff. Lormand v. U.S.
Unwired, Inc., 565 F.3d 228, 232-33 (5th Cir. 2009); Baker v.
Putnal, 75 F.3d 190, 196 (5th Cir. 1996). The court is not,
however, bound to accept as true legal conclusions couched as
factual allegations. Iqbal, 556 U.S. at 678.
12

Defendants also raise arguments under Rule 12(b)(1) and Rule
12(b)(5), for lack of subject matter jurisdiction and insufficient
service of process, respectively. The standard of review for a
facial challenge to a motion to dismiss under Rule 12(b)(1) is the
same as that for a motion to dismiss pursuant to Rule 12(b)(6).
United

States

v.

City

of

New

Orleans,

No.

02-3618,

2003

WL

22208578, at *1 (E.D. La. Sept. 19, 2003). A motion to dismiss
pursuant to Rule 12(b)(5) of the Federal Rules of Civil Procedure
challenges the mode of delivery or lack of delivery of the summons
and complaint. A 12(b)(5) motion turns on the legal sufficiency of
the service of process. Once the validity of service of process
has been contested, the plaintiff bears the burden of establishing
its validity. Carimi v. Royal Carribean Cruise Line, Inc., 959
F.2d 1344, 1346 (5th Cir. 1992). A district court has broad
discretion to dismiss an action pursuant to Rule 12(b)(5) for
insufficient service of process. Kreimerman v. Casa Veerkamp, S.A.
de C.V., 22 F.3d 634, 645 (5th Cir. 1994).
2. Motion for Summary Judgment
Summary

judgment

is

appropriate

when

“the

pleadings,

the

discovery and disclosure materials on file, and any affidavits
show that there is no genuine issue as to any material fact and
that the movant is entitled to judgment as a matter of law.”
13

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing former
Fed. R. Civ. P. 56(c)); Little v. Liquid Air Corp., 37 F.3d 1069,
1075 (5th Cir. 1994). When assessing whether a dispute as to any
material fact exists, the Court considers “all of the evidence in
the record but refrains from making credibility determinations or
weighing

the

evidence.”

Delta

&

Pine

Land

Co.

v.

Nationwide

Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir. 2008). All
reasonable inferences are drawn in favor of the nonmoving party,
but

a

party

cannot

defeat

summary

judgment

with

conclusory

allegations or unsubstantiated assertions. Little, 37 F.3d at
1075. A court ultimately must be satisfied that “a reasonable jury
could not return a verdict for the nonmoving party.” Delta, 530
F.3d at 399.
If the dispositive issue is one on which the moving party will
bear the burden of proof at trial, the moving party “must come
forward with evidence which would ‘entitle it to a directed verdict
if the evidence went uncontroverted at trial.’” Int’l Shortstop,
Inc. v. Rally’s, Inc., 939 F.2d 1257, 1263-64 (5th Cir. 1991)
(citation omitted). The nonmoving party can then defeat the motion
by either countering with sufficient evidence of its own, or
“showing that the moving party’s evidence is so sheer that it may

14

not persuade the reasonable fact-finder to return a verdict in
favor of the moving party.” Id. at 1265.
If the dispositive issue is one on which the nonmoving party
will bear the burden of proof at trial, the moving party may
satisfy its burden by merely pointing out that the evidence in the
record is insufficient with respect to an essential element of the
nonmoving party’s claim. See Celotex, 477 U.S. at 325. The burden
then shifts to the nonmoving party, who must, by submitting or
referring to evidence, set out specific facts showing that a
genuine issue exists. See id. at 324.

The nonmovant may not rest

upon the pleadings, but must identify specific facts that establish
a genuine issue for trial.

See, e.g., id. at 325; Little, 37 F.3d

at 1075.
DISCUSSION
A. Motions in Limine
Defendants’ arguments in both Motions in Limine follow one
central theme: Plaintiff failed to disclose documents or witnesses
in accordance with the Court’s scheduling order. (Rec. Doc. 81.)
The order provides:
Written reports of experts, as defined by Federal Rule
of Civil Procedure 26(a)(2)(B), who may be witnesses for
plaintiff shall be obtained and delivered to counsel for
defendant as soon as possible, but in no event later
than DECEMBER 23, 2015. . . . Counsel for the parties
shall file in the record and serve upon their opponents
15

a list of all witnesses who may or will be called to
testify on trial, and all exhibits that may or will be
used, not later than JANUARY 22, 2016. The Court will
not permit any witness, expert or fact, to testify or
exhibits to be used unless there has been compliance
with this Order as it pertains to the witnesses.
Id. at 1-2 (emphasis in original). Plaintiff filed his witness and
exhibit

lists

on

January

22,

in

accordance

with

this

order.

Defendants contend that Plaintiff seeks to introduce evidence that
he did not previously disclose. Further, Defendants argue that
Plaintiff

is

trying

to

introduce

expert

testimony

without

providing an expert report. Thus, the Court must consider whether
excluding the evidence is a proper sanction.
First, Plaintiff’s oppositions do not explain his failure to
comply

with

the

scheduling

order.

Plaintiff

contends

that

Defendants should have been aware of documents addressed to NOPD
employees.

However,

Plaintiff

fails

to

provide

any

other

explanation for his failure to include these documents in the
exhibit list.
Second, Defendants are prejudiced by Plaintiff’s failure to
produce

an

expert

witness

report.

The

purpose

of

requiring

disclosure of expert reports is to notify opposing parties of the
scope and content of the expert's proposed testimony. Matthews v.
Allstate Ins. Co., 731 F. Supp. 2d 552, 559 (E.D. La. 2010). In a
similar case before this Court, a defendant provided expert witness
16

reports two months after the deadline. Standard Servs. Co. v. Witex
USA, Inc., 2003 WL 2004442, at *2 (E.D. La. April 30, 2003). Here,
the

deadline

passed

three

months

ago

on

December

23,

2015.

Plaintiff has not produced an expert report for Ms. Hutson. Trial
is scheduled for April 11, 2016, in less than one month. Therefore,
Defendants are prejudiced by Plaintiff’s failure to comply with
the scheduling order.
Further, Defendants are prejudiced by Plaintiff’s attempt to
introduce documents that he did not previously disclose. The fact
that some of the documents were within Defendants’ control is
irrelevant. In a similar case, a court of this District found that
a plaintiff could not designate new witnesses after the deadline,
even though the witnesses were subject to the defendant’s control.
Cruz v. City of Hammond, No. 09-6304, 2015 WL 1467952, at *3 (E.D.
La. Mar. 30, 2015). The court reasoned:
Deadlines are in place to provide the parties and the
Court with some measure of predictability. It would have
been reasonable for the defendant to focus its discovery
efforts on only those witnesses it intended to call and
for those it had been notified that the plaintiff would
call. To now allow the plaintiff to call at trial
witnesses who were only identified well-after [sic] the
deadline to issue written discovery requests and only
days leading up to the actual discovery and deposition
deadline would be unfair, prejudicial, and not in the
interests of justice.

17

Id. In addition, late disclosure requires the defendant to “verify
all of the late-provided information and [marshal] opposition
evidence of its own.” Paulsen v. State Farm Ins. Co., No. 06-9546,
2008 WL 449783, at *5 (E.D. La. Feb. 15, 2008).
In this case, Plaintiff attempted to introduce new documentary
evidence at the deposition of Ms. Hutson, one week before the
discovery deadline. Also, on February 23, 2016, the discovery
deadline, Plaintiff attempted to fax the IPM report to Defendants.
However, Defendants did not receive the report until February 24.
Plaintiff did not include the report on his exhibit list. By the
time Defendants received the report, trial was fewer than two
months away. If the Court were to allow Plaintiff to introduce
this evidence, Defendants would suffer prejudice due to the late
filing. Also, Defendants were prejudiced by Plaintiff’s attempts
to introduce previously undisclosed documents at the deposition of
Ms. Hutson. Because they were unfamiliar with the documents,
Defendants were forced to postpone their deposition of Ms. Hutson
to March 22, 2016, just three weeks before trial.
Third, the prejudice cannot be cured by a continuance of the
trial date. Plaintiff filed suit on September 16, 2012. The Court
has

continued

the

trial

date

several

times.

The

parties

are

preparing for trial on April 11, 2016, and a continuance would
18

create an unnecessary, additional delay. Granting a continuance
now would only serve to reward Plaintiff for missing the discovery
deadline. “[A] continuance does not, in and of itself, ‘deter
future dilatory behavior, nor serve to enforce local rules or court
imposed scheduling orders.’” Barrett, 95 F.3d at 381 (quoting
Geiserman v. MacDonald, 893 F.2d 787, 792 (5th Cir. 1990)).
Plaintiff does not argue that the evidence to be excluded is
central to his case. However, to the extent that the evidence is
important,

the

importance

of

the

evidence

cannot

“singularly

override the enforcement of local rules and scheduling orders.”
Barrett, 95 F.3d at 381 (quoting Geiserman, 893 F.2d at 792)).
Also, if the evidence were important, Plaintiff should have sought
an extension of the deadline. The potential importance of the
excluded evidence is outweighed by Plaintiff’s failure to comply
with the scheduling order.
Therefore, Plaintiff is precluded from introducing any documents
not specified on the first exhibit list, including the IPM report,
in

accordance

with

this

Court’s

scheduling

order.

Further,

Plaintiff is prohibited from introducing any expert witnesses for
whom expert reports were not provided. However, Ms. Hutson may
testify as a fact witness because she is listed on Plaintiff’s
witness

list.

To

the

extent

that
19

it

included

evidence

not

previously

disclosed,

the

second

exhibit

list

provided

to

Defendants is hereby stricken. Finally, the Court declines to
sanction

Plaintiff

or

award

attorneys’

fees

and

costs

to

Defendants.
B. Motion to Dismiss/Motion for Summary Judgment
Defendants raise five distinct arguments in their motion. The
Court will discuss each in turn.
1. Claims Against Robert Norton
Defendants argue that Robert Norton, a state actor, did not
receive service of process in his individual capacity. “[T]he fact
that an individual state actor may be sued in his or her official
capacity does not obviate the necessity for appropriate service of
process for suit in a person's individual capacity.” Judeh v.
Louisiana State Univ. Sys., No. 12-1758, 2013 WL 654921, at *3
(E.D. La. Feb. 20, 2013); see also Robinson v. Turner, 15 F.3d 82,
85 (7th Cir. 1994) (“Service upon an employee in his official
capacity does not amount to service in his individual capacity.”).
“To serve a [government] officer or employee sued in an individual
capacity for an act or omission occurring in connection with duties
performed on the [government's] behalf (whether or not the officer
or employee is also sued in an official capacity), a party must

20

serve the [government] and also serve the officer or employee under
Rule 4(e), (f), or (g).” See FED. R. CIV. P. 4(i)(3).
The procedural requirements for proper service are set forth in
Rule 4 of the Federal Rules of Civil Procedure. Under Rule 4(e),
an individual may be served by following the procedural methods of
service of process provided by the state in which the district
court is located, see FED. R. CIV. P. 4(e)(1), or by doing any of
the following: (1) “delivering a copy of the summons and of the
complaint to the individual personally”; (2) “leaving a copy of
each at the individual’s dwelling or usual place of abode with
someone of suitable age and discretion who resides there”; or (3)
“delivering a copy of each to an agent authorized by appointment
or by law to receive service of process.” FED. R. CIV. P. 4(e)(2).
Rule 4(m) gives a plaintiff 120 days to serve the defendants. 2
Under Rule 4(m), when a plaintiff fails to serve a defendant within
the 120-day period, the court may “dismiss the action without
prejudice against that defendant or order that service be made
within a specified time.” FED. R. CIV. P. 4(m). If, however, the

Rule 4(m) was amended in 2015, and the time for effecting service on a
defendant was reduced from 120 days to 90 days. The 2015 amendment took
effect on December 1, 2015, after Plaintiff filed suit. Therefore, the
Court applies the 120-day period in effect at the time the instant case
was filed.
21
2

plaintiff shows good cause for the failure, the court must extend
the time of service for an appropriate period. Id.
In this case, Plaintiff’s complaint fails to name Norton in his
official capacity. Thus, Plaintiff should have effected service on
Norton, a defendant named in his individual capacity. Plaintiff
neither offered evidence to show service on Norton, nor showed
good cause for the failure to serve Norton. Because Plaintiff
failed to serve Norton in the requisite time period, the Court
finds that all claims against Norton should be dismissed without
prejudice.
2. Section 1983 Claims
Section 1983 provides a cause of action against any person who,
under color of law, deprives another of “any rights, privileges or
immunities secured by the Constitution and laws.” 42 U.S.C. § 1983.
Section 1983 is a procedural vehicle to provide a remedy for
violations of constitutional or statutory rights, but it does not
create any substantive rights. Johnston v. Harris Cnty. Flood
Control Dist., 869 F.2d 1565, 1574 (5th Cir. 1989). Accordingly,
where “Congress has enacted a statute that covers a specific
substantive area providing specific remedies, a cause of action
under [Section] 1983 is foreclosed.” Lafleur v. Tex. Dept. of
Health, 126 F.3d 758, 759 (5th Cir. 1997) (finding that the Age
22

Discrimination in Employment Act (“ADEA”) preempted a Section 1983
claim).
Here, Plaintiff’s Section 1983 claim restates his FLSA claims.
With respect to Section 1983, the complaint states:
In his position as the City’s policymaker, Chief Serpas
instituted a supervised a program by which employees of
NOPD would work substantial overtime hours and yet
receive no compensation, either monetary or in-kind. He
was assisted in making and implementing this policy by
those like Commander Norton, who developed policy for
those individuals subject to his authority. Serpas and
Norton used this authority to perform various acts of
retaliation as set forth herein in maintaining the
viability of their policies.
(Rec. Doc. 1, at 12.) These claims arise under the FLSA, as the
Court will discuss in Section 3, below. However, “courts have
consistently held that the FLSA provides an exclusive remedy for
overtime violations.” Henley v. Simpson, No. 10-590, 2012 WL
3017812, at *2 (S.D. Miss. July 23, 2012) vacated in part on other
grounds, 527 F. App'x 303 (5th Cir. 2013) (collecting cases:
Barfield v. Madison Cnty., Miss., 984 F. Supp. 491, 509 (S.D. Miss.
1997) (dismissing Section 1983 claims because the FLSA provides
the exclusive remedy), abrogated on other grounds by Washington v.
Fred's Stores of Tenn., Inc., 427 F. Supp. 2d 725 (S.D. Miss. 2006)
(finding

state

law

negligence

and

conversion

claims

not

preempted); see also Kendall v. City of Chesapeake, Va., 174 F.3d
437,

443

(4th

Cir.

1999)

(concluding
23

“that

the

mechanisms

established by the FLSA preclude a [Section] 1983 action to enforce
FLSA rights”); Britt v. Grocers Supply Co., Inc., 978 F.2d 1441,
1448 (5th Cir. 1992) (noting that the ADEA is the exclusive remedy
for age discrimination and forecloses actions under Section 1983)
(citing Zombro v. Baltimore City Police Dep't., 868 F.2d 1364,
1369 (4th Cir. 1989) (observing that the ADEA is part of Section
1983)); Montano-Perez v. Durrett Cheese Sales, Inc., 666 F. Supp.
2d

894,

905

(M.D.

Tenn.

2009)

(noting

“numerous

courts

have

concluded that a plaintiff may not seek relief under [Section]
1983 for violations of the FLSA”); O'Quinn v. Chambers Cnty., Tex.,
636 F. Supp. 1388, 1392 (S.D. Tex. 1986) (“Moreover, the FLSA
probably provides an exclusive remedy for violations of rights
conferred by the FLSA.”)). Therefore, Plaintiffs' Section 1983
claims should be dismissed for failure to state a claim. 3
3. FLSA Claims
Plaintiff raises two claims under the FLSA. First, he challenges
the NOPD’s J&T system. Second, he argues that the NOPD illegally
retaliated against him for engaging in protected activity. The
Court will discuss each claim in turn.

Because Plaintiff’s claim will be dismissed for failure to state a
claim, the Court need not address Defendants’ remaining arguments.
24

3

a. Overtime Claims
Section 207 of the FLSA provides the mandatory parameters for
overtime pay. 29 U.S.C. § 207. Section 216(b) of the FLSA affords
workers a right of action for violations of these parameters. Id.
§ 216(b). Section 207(a) requires employers covered by the Fair
Labor Standards Act to pay their employees one and a half times
the regular rate at which they are employed for any hours worked
in excess of forty in a single week. Id. § 207(a).
However, Section 207(k) provides a partial exception to this
general rule for employees of a public agency engaged in fire
protection or law enforcement activities. Public agency employers
falling within this exception may instead determine the threshold
for overtime pay on the basis of a pay period of more than seven
and

less

than

twenty-eight

days.

29

U.S.C.

§

207(k)(1).

The

interpretive regulations of the FLSA establish that overtime pay
is owed to law enforcement officers “when the ratio of the number
of hours worked to the number of days in the work period exceeds
the ratio of . . . 171 . . . hours to [twenty-eight] days.” 4 29
C.F.R. § 553.201(a). However, before a public employer may qualify
for the Section 207(k) exemption, “(1) the employees at issue must

4

The resulting ratio of 6.11 hours per day, rounded, translates into
86 hours for a work period of 14 days. 29 C.F.R. § 553.230
25

be engaged in fire protection or law enforcement within the meaning
of the statute and (2) the employer must have established a
qualifying work period.” Rosano v. Twp. of Teaneck, 754 F.3d 177,
185 (3d Cir. 2014) (quoting Calvao v. Town of Framingham, 599 F.3d
10, 14 (1st Cir. 2010)) (quotation marks omitted).
On the evidence before the Court, the NOPD’s employees clearly
qualify

for

the

Section

207(k)

exemption.

First,

it

is

uncontroverted that Plaintiffs are engaged in law enforcement
activities within the meaning of the FLSA. Second, the NOPD has
established a fourteen day work period, within which an employee
must be paid overtime for hours worked in excess of 85.5 in a
single work period. (Rec. Doc. 116-5.) This pay period complies
with Section 553.201(a). To accommodate the unpredictable needs of
its workforce on any given day and adhere to the 85.5 hour pay
period, the NOPD instituted a system referred to as “J&T Time.”
Under this system, any unscheduled hours worked by an officer are
entered into the city payroll system under the code “J” and the
corresponding reduction of scheduled hours within that same pay
period – to offset the extra time worked – is entered under the
code “T.” On its face, the J&T Time scheme simply allows for
flexible scheduling within the structure of the two-week work
period; it does not violate the FLSA. Thus, Defendants are entitled
26

to summary judgment on Plaintiffs’ claim that the J&T Time policy
violates the FLSA.
In their motion for summary judgment, Defendants argue that
Plaintiff failed to present sufficient evidence to support the
claim

that

the

NOPD

inadequately

and

inaccurately

documented

overtime hours in a consistent manner. (Rec. Doc. 116-1, at 4.) To
the contrary, Defendants assert that the City’s records establish
that Perez is not owed overtime pay by the NOPD. Id. Plaintiff
responds that the NOPD’s records are “incomplete and faulty”
because many worked overtime hours were never recorded in the first
place. (Rec. Doc. 143, at 7.) In support of this assertion,
Plaintiff attaches (1) a sworn affidavit of Perez that recounts
numerous instances in which he completed necessary work during
off-duty hours for which he was not compensated (Rec. Doc. 143-7,
at 3, 7-11) and (2) interrogatory responses generally on behalf of
the class and from three named class members. (Rec. Doc. 143-8.) 5
A

plaintiff

generally

has

the

burden

of

proving

that

his

employer violated the FLSA and can do so by relying upon his
employer’s proper and accurate records. Anderson v. Mt. Clemens
Pottery Co., 328 U.S. 680, 686-87 (1946), superseded on other

5

Numerous other responses to interrogatories from individual class
members appear elsewhere in the record but were not appended to
Plaintiff’s opposition. (See Rec. Doc. 118-5.)
27

grounds by statute, The Portal-to-Portal Act, 29 U.S.C. §§ 251 et
seq., as recognized in IBP, Inc. v. Alvarez, 546 U.S. 21 (2005).
However,
where
the
employer's
records
are
inaccurate
or
inadequate . . . an employee has carried out his burden
if he proves that he has in fact performed work for which
he was improperly compensated and if he produces
sufficient evidence to show the amount and extent of
that work as a matter of just and reasonable inference.
The burden then shifts to the employer to come forward
with evidence of the precise amount of work performed or
with evidence to negative the reasonableness of the
inference to be drawn from the employee's evidence. If
the employer fails to produce such evidence, the court
may then award damages to the employee, even though the
result be only approximate.
Id. Prima facie proof of a pattern or practice of FLSA violations
may be established through representational evidence. See Brennan
v. Gen. Motors Acceptance Corp., 482 F.2d 825, 829 (5th Cir. 1973).
The accuracy of NOPD records is a material fact that remains in
dispute.

Moreover,

Plaintiff

submitted

admissible

evidence

demonstrating reasonably quantifiable uncompensated hours worked.
Defendants have offered no evidence to negate the reasonableness
of inferences drawn from Plaintiff’s evidence. Summary judgment is
inappropriate on this record as to Plaintiff’s claim that the NOPD
failed to accurately record officers’ unscheduled time worked.

28

b. Retaliation Claims
Defendants assert that Perez’s

retaliation claim should be

dismissed and provide several arguments in support: (1) that
article 10, § 12(B) of the Louisiana State Constitution vests the
New Orleans Civil Service Commission – not this Court – with
exclusive subject matter jurisdiction over appeals by classified
employees

regarding

disciplinary

actions

and

other

personnel

transactions taken by their respective departments and (2) that,
given the current appeal before the Louisiana Fourth Circuit Court
of Appeal of the Civil Service Commission’s decision regarding
Perez’s discipline, the risk of inconsistent findings of fact and
rulings counsel against this Court maintaining jurisdiction over
the claim. Further, Defendants assert that if this Court finds it
has proper jurisdiction over the claim, Defendants are entitled to
summary judgment because they did not retaliate against Perez as
there was a legitimate, non-retaliatory reason for his one-day
suspension.
First, with respect to Defendants’ jurisdictional arguments,
the Louisiana State Constitution provides,
Each city commission . . . shall have the exclusive power
and authority to hear and decide all removal and
disciplinary cases . . . . The decision of a commission
shall be subject to review on any question of law or
fact upon appeal to the court of appeal wherein the
commission is located, upon application filed with the
29

commission within thirty
decision becomes final.”

calendar

days

after

its

LA. CONST. art. 10 § 12(b). This language clearly establishes the
exclusive original jurisdiction of the New Orleans Civil Service
Commission over termination and disciplinary cases, such as the
successful disciplinary appeal taken by Perez, now on appeal by
the City in the Louisiana courts. However, Plaintiff does not now
seek reinstatement or restoration of seniority in this case.
Rather, Plaintiff seeks damages for lost wages and emotional and
physical distress. (See Rec. Doc. 1, at 14.)
Courts that have addressed similar jurisdictional arguments in
the context of state law claims have largely determined that
because the Civil Service Commission has no authority to provide
for general tort damages, the courts have jurisdiction over state
law claims “for loss of enjoyment, loss of reputation, lost wages
and benefits, and mental anguish and emotional distress.” Pike v.
Office of Alcohol & Tobacco Control of the La. Dep't of Revenue,
No. 14-511, 2015 WL 9703355, at *15 (M.D. La. Sept. 22, 2015). The
Louisiana Supreme Court has yet to address this issue, but several
federal district court and Louisiana Court of Appeals decisions
support this analysis. Id. at *8-15. A fortiori, if this Court
would have jurisdiction over state law tort claims related to
adverse employment actions suffered by Perez, this Court has
30

jurisdiction over his FLSA retaliation claims. Because the Civil
Service Commission cannot provide Plaintiff with the relief he
seeks,

this

Court

properly

maintains

jurisdiction

over

his

retaliation claim.
Second, with respect to Defendants’ arguments on the merits,
the FLSA provides in pertinent part:
(a) . . . [I]t shall be unlawful for any person . . .
(3) to discharge or in any other manner discriminate
against any employee because such employee has filed any
complaint or instituted or caused to be instituted any
proceeding under or related to this chapter, or has
testified or is about to testify in any such proceeding,
or has served or is about to serve on an industry
committee . . . .
29

U.S.C.

§

215(a)(3).

To

establish

a

prima

facie

case

of

retaliation under the FLSA, a plaintiff must show: (1) that he
engaged in a protected activity, (2) an employment action that
disadvantaged

him,

and

(3)

a

causal

connection

between

the

protected activity and the adverse employment action. Smith v.
Parish of Washington, 318 F. Supp. 2d 366 (E.D. La. 2004). The
burden-shifting framework developed for Title VII discrimination
cases in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973),
has been adapted and applied to claims under the FLSA. Kanida v.
Gulf Coast Medical Personnel LP, 363 F.3d 568, 575 n.5 (5th Cir.
2004). Thus, after the plaintiff establishes a prima facie case,

31

“the

defendant

must

then

articulate

a

legitimate,

non-

discriminatory reason for its decision. The burden then shifts to
the plaintiff to demonstrate that the proffered reason is a pretext
for discrimination.” Hagan v. Echostar Satellite, L.L.C., 529 F.3d
617, 624 (5th Cir. 2008).
Plaintiff met his burden of proving the prima facie case.
Defendants

proffered

a

non-discriminatory

reason

for

their

actions, but Plaintiff demonstrated that whether this reason is
pretext is at least a material fact in dispute. First, Plaintiff’s
complaint

sets

out

a

prima

facie

discrimination

claim.

The

complaint alleges, “Officer Perez engaged in protected conduct by
reporting

his

supervisors

to

the

appropriate

authorities

and

informing those authorities of the violations of FLSA perpetrated
by the NOPD.” (Rec. Doc. 1, at 13.) As discussed above, filing a
complaint or instituting a proceeding under the FLSA is protected
conduct. 29 U.S.C. § 215(a)(3). Further, the complaint alleges
that Defendants took adverse employment action against Perez by:
1) Disciplining him on multiple occasions for actions
and/or omissions he did not commit;
2) Denying Perez promotion based on baseless complaints
their own evidence showed was meritless;
3) Demeaning and maligning Officer Perez to various
members of the NOPD and the public; [and]
4) Subjecting Officer Perez to demeaning comments and
other unwarranted criticism during the performance of
his duties . . . .
32

(Rec. Doc. 1, at 13.) Finally, the complaint states that Plaintiff
experienced

the

adverse

employment

actions

after

filing

his

complaint. Id. at 6-9.
Second, Defendants offered a non-discriminatory reason for the
adverse

employment

action.

Defendants

argue

that

Plaintiff

received a one-day suspension because he left work early without
obtaining permission from his supervisor. Thus, the burden shifts
to

Plaintiff

proffered

to

reason

Commission’s

introduce

evidence

showing

is

pretext.

Here,

decision

mere
is

instructive.

(See

that

the
Rec.

Defendants’

Civil

Service

Doc.

143-2.)

Plaintiff appealed his one-day suspension to the Commission, which
granted his appeal. The Commission found that Perez “proved by a
preponderance of the evidence that the disciplinary action against
him was motivated by retaliation.” Id. at 6. The evidence showed
that Perez’s infraction was not part of a pattern predating his
FLSA complaint, that Perez’s supervisor was able to reach him by
telephone if he was needed, that the supervisor did not ask him to
return after he left early, and that the offense was not one
“usually deemed worthy of disciplinary action in the absence of a
retaliatory motive.” Id. at 6-7.

33

Defendants correctly assert that the Commission’s decision was
based on state law, not federal law. However, Plaintiff introduced
sufficient evidence to create a fact issue as to Defendants’
motives in disciplining him. Summary judgment is inappropriate on
Plaintiff’s retaliation claim.
4. Defamation Claims
Under Louisiana law, a successful cause of action for defamation
requires the existence of the following four elements: (1) a false
and defamatory statement concerning another; (2) an unprivileged
publication to a third party; (3) fault (negligence or greater) on
the part of the publisher; and (4) resulting injury. Costello v.
Hardy, 864 So. 2d 129, 139 (La. 2004). The plaintiff must prove
each element to prevail. Id. at 140. In this case, Plaintiff’s
complaint

alleges

that

the

City

and

Norton

are

liable

for

defamation. The complaint states:
Acting in his capacity as the policymaker for the City,
Commander Norton made demeaning and degrading comments–
both personal and professional–concerning Officer Perez.
Said statements were false when made and were made with
intentional or reckless disregard for the truth or
falsity of the statements. They had further had the
effect of demeaning and/or degrading Officer Perez’s
reputation within the community.
(Rec. Doc. 1, at 15.) Further, the complaint alleges that the City
is likewise liable because Norton made the statements while acting
as a “policymaker” for NOPD. While Plaintiff’s complaint alleges
34

the first, third, and fourth elements of defamation, it does not
allege that Norton’s statements were unprivileged and made to a
third party. Thus, the complaint is deficient in this regard.
Even if Plaintiff did adequately state a cause of action for
defamation, Defendants are entitled to summary judgment on this
claim. Plaintiff has not introduced any evidence to support his
allegations. Further, Plaintiff did not oppose Defendants’ motion
for summary judgment on this cause of action. Thus, Plaintiff’s
claim for defamation should be dismissed.
5. IIED Claims
Under Louisiana law, a claim for IIED requires a showing that
“(1) the conduct of the defendant was extreme and outrageous; (2)
the emotional distress suffered by the plaintiff was severe; and
(3) the defendant desired to inflict severe emotional distress and
knew that severe emotional distress would be substantially certain
to result from the conduct.” Murungi v. Tex. Guaranteed, 693 F.
Supp. 2d 597, 607 (E.D. La. 2010), aff'd, 402 F. App’x. 849 (5th
Cir. 2010) (citing White v. Monsanto, 585 So. 2d 1205, 1209
(La.1991)). The Louisiana Supreme Court described the “extreme and
outrageous” requirement as such:
The conduct must be so outrageous in character, and so
extreme in degree, as to go beyond all possible bounds
of decency, and to be regarded as atrocious and utterly
intolerable in a civilized community. Liability does not
35

extend
to
mere
insults,
indignities,
threats,
annoyances, petty oppressions, or other trivialities.
Persons must necessarily be expected to be hardened to
a certain amount of rough language, and to occasional
acts that are definitely inconsiderate and unkind. Not
every verbal encounter may be converted into a tort; on
the contrary, some safety valve must be left through
which irascible tempers may blow off relatively harmless
steam.
White, 585 So. 2d at 1209 (internal quotation marks and citations
omitted).
With respect to IIED, Plaintiff’s complaint states:
The conduct of the City and its policymakers Serpas and
Norton, was extreme and not reasonably calculated
towards the circumstances of the conduct alleged herein.
Said conduct has caused severe distress to Officer
Perez. Chief Serpas and Officer Norton–acting on behalf
of the City–intended for that distress to be sustained
by Officer Perez because he spoke out against the illegal
policies of the NOPD.
(Rec. Doc. 1, at 16.) The complained-about “conduct” includes
disciplining Plaintiff, denying him promotion, demeaning him to
the NOPD and the public, and unnecessarily criticizing him. (Rec.
Doc. 1, at 13.) Plaintiff’s complaint fails to explain how this
behavior could be considered “outrageous” and “beyond all possible
bounds of decency.” Murungi, 693 F. Supp. 2d at 608. Instead, this
conduct

amounts

to

“mere

insults,

indignities,

threats,

annoyances, petty oppressions, or other trivialities.” See White,
585 So. 2d at 1209.

36

To the extent that Plaintiff stated a cognizable claim for IIED,
such claim is subject to summary judgment for the same reasons as
Plaintiff’s defamation claim. Plaintiff neither adduced evidence
to support his claim, nor opposed Defendants’ motion with respect
to IIED. Thus, Plaintiff’s IIED claim should be dismissed.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Defendants’ Motions in Limine (Rec.
Doc. 130; Rec. Doc. 145) are GRANTED in part and DENIED in part.
IT IS FURTHER ORDERED that Defendants’ Motion to Dismiss/Motion
for Summary Judgment (Rec. Doc. 116) is GRANTED in part and DENIED
in part.
IT IS FURTHER ORDERED that Defendants’ Motion for Leave to File
Reply (Rec. Doc. 154) is DENIED as moot.
New Orleans, Louisiana, this 24th day of March, 2016

CARL J. BARBIER
UNITED STATES DISTRICT COURT

37