Velasquez v. Salsas and Beer Restaurant, Inc. et al
Filing
59
ORDER denying 40 Motion for Summary Judgment; denying 49 Motion to Strike; denying 54 Motion for Sanctions. Signed by Chief Judge James C. Dever III on 9/28/2017. (Briggeman, N.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:15-CV-146-D
CHRISTIAN VELASQUEZ, on behalf of
himself and all others similarly situated,
Plaintiff,
v.
SALSAS AND BEER RESTAURANT, INC.,
NOE PATINO, PATRICIAPATINO,
DIONISIO PATINO, and ISMAEL PATINO,
Defendants.
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ORDER
On April 7, 2015, Christian Velasquez ("Velasquez" or "plaintiff') filed a class-action
complaint against Salsas and Beer Restaurant, Inc., ("SBR" or ''the Restaurant"), Noe Patino,
Patricia Patino, Dionisio Patino, and Ismael Patino (collectively, "defendants") claiming violations
of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201 et seq., and the North Carolina Wage
and Hour Act ("NCWHA), N.C. Gen. Stat. §§ 95-25.1 et seq. [D.E.
tV
On June 10, 2015,
defendants answered [D.E. 21]. On October 24,2016, Velasquez moved for summary judgment
[D.E. 40] and filed a memorandum in support [D.E. 42], a statement ofmaterial facts ("SMF") [D.E.
41 ], and supporting exhibits [D.E. 43]. On December 16, 2016, defendants responded in opposition
[D.E. 48], appended an affidavit from Patricia Patino ("Patino affidavit") to their response, and
argued that the court lacks subject-matter jurisdiction over Velasquez's FLSA claim [D.E. 48-1].
On December 30, 2016, Velasquez replied [D.E. 50].
1
Velasquez never sought class certification.
On December 30, 2016, Velasquez moved to strike the Patino affidavit [D.E. 49]. On
January 20, 2017, defendants responded in opposition to Velasquez's motion to strike [D.E. 52].
On February 1, 2017, Velasquez replied [D.E. 53]. On February 1, 2017, Velasquez also moved for
sanctions, claiming that the Patino affidavit contained a known falsehood [D.E. 54]. On February
22,2017, defendantsrespondedinopposition [D.E. 56]. On March 1, 2017, Velasquez replied [D.E.
57]. As explained below, the 'court denies Velasquez's motion for summary judgment, denies
Velasquez's motion to strike, and denies Velasquez's motion for sanctions.
I.
Noe, Patricia, Dionisio, and lsmael Patino own and operate SBR. See SMF
~
3. SBR is
registered as a business corporation with the North Carolina Secretary of State. ld.
~
4. Noe is
SBR's President. Patricia is SBR's Vice President. Dionisio is SBR's Secretary. Ismael is SBR's
Treasurer. Id. ~ 3. SBR' s principal office is in Fayetteville, North Carolina, and it has another office
in Hope Mills, North Carolina. [D.E. 43-3]. Defendants operate three Salsas and Beer Restaurants,
including a location at 231 Skyland Shopping Center, Spring Lake, North Carolina (''the
Restaurant"). SMF ~ 5.
Velasquez resides in Spring Lake, North Carolina. Id. ~ 1. From September 2012 through
November 17, 2014, defendants employed Velasquez. Id. ~ 2. Velasquez worked as a server at the
SBR at 231 Skyland Shopping Center, Spring Lake, North Carolina. Id.
~~5-6.
As a server,
Velasquez reported directly to the Patinos or their agents. Id. ~ 9. Velasquez's job duties included
serving food and drinks to the Restaurant's customers, but did not include management of business
or employees. ld. ~~ 7-8. Defendants set Velasquez's work schedule. Id.
~
10.
During Velasquez's employment at the Restaurant, except for a two-week period in August
2014, Velasquez received no hourly wage, but instead was paid only tips. Id.
2
~~
13-15. During a
two-week period in August 2014, Velasquez received checks for a total payment of$124.67. [D.E.
43-4] ~ 10. Defendants deducted five dollars per day from Velasquez's tips and gave that money to
non-tipped employees, including a "chip girl," drink-carriers, and busboys. SMF ~~ 17-19; [D.E.
43-2] 26-27; [D.E. 43-4] ~ 9. Velasquez worked 55 hours per week on average, but was never paid
additional wages for overtime hours worked. SMF
~
20. Defendants did not keep or maintain
records showing how many hours Velasquez worked. Id.
~
12.
OnApril7, 2015, Velasquez filed this action. See Compl. [D.E. 1]. Defendants answered
and denied that defendants
were an enterprise engaged in commerce or the production of goods as defined by
Section 3(s) of the FLSA, 29 U.S.C. § 203(s)(l), in that said enterprise had
employees engaged in commerce or in the production of goods for commerce, or
employees handling, selling, or otherwise working on goods or materials that have
been moved in or produced for commerce by any person and in that said enterprise
has had and has an annual gross volume of sales made or business done of not less
than $500,000.
See Answer [D.E. 21]
~
26. Defendants raised as a defense to the FLSA claim a lack of subject-
matter jurisdiction. See id.; see also id. at 1.
Il.
Summary judgment is appropriate if the moving party demonstrates that there is no genuine
dispute as to any material fact and the moving party is entitled to judgment as a matter oflaw. Fed.
R. Civ. P. 56(a). The party seeking summary judgment must initially show an absence of a genuine
dispute of material fact or the absence of evidence to support the nonmoving party's case. Celotex
Com. v. Catre!!, 477U.S. 317,325 (1986). Ifamovingpartymeets its burden, the nonmoving party
must "come forward with specific facts showing that there is a genuine issue for trial." Matsushita
Elec. Indus. Co. v. Zenith Radio Cotp., 475 U.S. 574, 587 (1986) (quotation and emphasis omitted).
A genuine issue for trial exists ifthere is sufficient evidence favoring the nonmoving party for a jury
3
to return a verdict for that party. Anderson v. LibeeyLobby. Inc., 477 U.S. 242,249 (1986). "The
mere existence of a scintilla of evidence in support of the plaintiff's position [is] insufficient ...."
Id. at 252; see Beale v. Hardy, 769 F.2d 213,214 (4th Cir. 1985) ("The nonmoving party, however,
cannot create a genuine issue of material fact through mere speculation or the building of one
inference upon another."). Only factual disputes that might affect the outcome under substantive law
properly preclude summary judgment. Anderson, 477 U.S. at 248. In reviewing the factual record,
the court views the facts in the light most favorable to the nonmoving party and draws reasonable
inferences in that party's favor. Matsushim, 475 U.S. at 587-88.
Velasquez's NCWHA claim requires this court to apply North Carolina law. In resolving
any disputed issue of state law, the court must determine how the Supreme Court of North Carolina
would rule. See Twin Cicy Fire Ins. Co. v. Ben Amold-Sunbelt Beverage Co., 433 F.3d 365, 369
(4th Cir. 2005). Ifthe Supreme Court ofNorth Carolina "has spoken neither directly nor indirectly
on the particular issue before," this court must "predict how [it] would rule if presented with the
issue." ld. (quotations omitted). In making that prediction, the court "may consider lower court
opinions[,] ... treatises, and the practices of other states." Id. (quotation omitted)? When predicting
an outcome under state law, a federal court "should not create or expand [a] [s]tate's public policy."
Time Warner Entm't-Advance/Newhouse P'ship v. Carteret-Craven Elec. Membership Corp., 506
F.3d 304, 314 (4th Cir. 2007) (first alteration in original) (quotation omitted); see Wade v. Danek
Med.. Inc., 182 F .3d 281, 286 (4th Cir. 1999).
2
North Carolina does not have a mechanism for certifying questions of state law to its
Supreme Court. See Town ofNags Head v. Toloczk:o, 728 F.3d 391, 397-98 (4th Cir. 2013).
4
A.
As for Velasquez's FLSA claim, defendants argue that the court lacks subject-matter
jurisdiction over that claim. Subject-matter jurisdiction is ''the court's statutory or constitutional
power to adjudicate the case." Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 89 (1998)
(emphasis omitted); see Holloway v. Pagan River Dockside Seafood. Inc., 669 F.3d 448, 453 (4th
Cir. 2012). The court "must determine that it has subject-matter jurisdiction over [a claim] before
it can pass on the merits ofthat [claim]." Constantine v. Rectors & Visitors of George Mason Univ .,
411 F.3d 474,479-80 (4th Cir. 2005). "[T]he party invoking federal jurisdiction bears the burden
of establishing its existence." Steel Co., 523 U.S. at 104; see,~' Evans v. B.F. Perkins Co., 166
F.3d642, 647 (4thCir. 1999). A party's failuretoestablishsubject-matterjurisdictionmayberaised
at any time by any party or by the court. See Arbaugh v. Y&H Com., 546 U.S. 500, 506--07 (2006);
GO Comput.. Inc. v. Microsoft Com., 508 F.3d 170, 175 n.2 (4th Cir. 2007); Fed. R. Civ. P.
12(h)(3). When a district court may dismiss a claim under Rule 56 or Rule 12(b)(1) for lack of
subject-matter jurisdiction, the Fourth Circuit has observed that, rather than granting summary
judgment under Rule 56, the district court should dismiss the suit for want ofjurisdiction under Rule
12(b)(1). See Williams v. United States, 50 F.3d299, 304 (4th Cir. 1995); see also White Tail Park.
Inc. v. Stroube, 413 F.3d451, 459 (4th Cir. 2005); Evans, 166 F.3d at 647 & n.3; Saval v. BL Ltd.,
710 F.2d 1027, 1029 n.2 (4th Cir. 1983) (per curiam). Proceeding under the Rule 12(b)(1)
framework is appropriate even if neither party has brought a motion under that provision. See
Williams, 50 F.3d at 301--02, 304.
There are two ways the court may conclude that it lacks subject-matter jurisdiction under
Rule 12(b)(1). See Lovern v. Edwards, 190 F.3d 648, 654 (4th Cir. 1999). "The court may find
insufficient allegations in the pleadings, viewing the alleged facts in the light most favorable to the
5
plaintiff, similar to an evaluation pursuant to Rule 12(b)(6). Alternatively, after an evidentiary
hearing, the court may weigh the evidence in determining whether the facts support the jurisdictional
allegations." Id. (citations omitted). Thus, a motion under Rule 12(b)(1) permits"[a] trial court [to]
consider evidence by affidavit, depositions or live testimony without converting the proceeding to
one for summary judgment." Adams v.
B~
697 F.2d 1213, 1219 (4th Cir. 1982); see Suter v.
United States, 441 F.3d 306, 309 n.2 (4th Cir. 2006). When the court weighs the evidence
concerning subject-matter jurisdiction, ''the presumption of truthfulness normally accorded a
complaint's allegations does not apply, and the district court is entitled to decide disputed issues of
factwithrespectto subject matter jurisdiction." Kerns v. United States, 585 F.3d 187, 192 (4th Cir.
2009).
The FLSA provides that an "employer shall pay to each of his employees" $7.25 per hour.
29 U.S.C. § 206(a)(1)(c). Furthermore, "no employer shall employ any ofhis employees ... for a
workweek longer than forty hours"· without paying such a non-exempt employee overtime
compensation at least 1.5 times the employee's normal rate. ld. § 207(a)(l). Under the
FLSA~
"[a]ny employer who violates the provisions of section 206 or section 207 ... shall be liable to the
employee ... affected in the amount of their unpaid minimum wages, or their unpaid overtime
compensation, as the case may be, and in an additional equal ainount as liquidated damages." ld.
§ 216(b).
The United States Court of Appeals for the Fourth Circuit has held that FLSA coverage is
a jurisdictional requirement of an FLSA claim. See Ergashov v. Glob. Dynamic Transp .. LLC, 680
F. App'x 161, 162-63 (4thCir. 2017) (per curiam) (unpublishedV Sections206 and207 apply only
3
Other'courts, including some district courts in the Fourth Circuit before Ergashov, have held
that FLSA coverag~ is not a jurisdictional requirement. See Chao v. Hotel Oasis. Inc., 493 F.3d 26,
6
if the plaintiffs employment was covered under the FLSA. "There are two possible types ofFLSA
coverage." Josendis v. Wall to Wall Residence Repairs. Inc., 662 F.3d 1292, 1298 (lith Cir. 2011).
"First, an employee may claim individual coverage if he regularly and directly participates in the
actual movement of persons or things in interstate commerce." Id. (alteration and quotation
omitted). "Second, an employee is subject to enterprise coverage ifhe is 'employed in an enterprise
engaged in commerce or in the production of goods for commerce' ...." ld. at 1298-99 (quoting
29 U.S.C. § 207(a)(l)). '"Commerce' means trade, commerce, transportation, transmission, or
communication among the several States or between any State and any place outside thereof." 29
U.S.C. § 203(b). "Goods" means "goods ... , wares, products, commodities, merchandise, or
articles or subjects of commerce of any character, or any part or ingredient thereof, but does not
include goods after their delivery into the actual physical possession ofthe ultimate consumer thereof
other than a producer, manufacturer, or processor thereof." Id. ·§ 203(i). In relevant part,., an
"[e]nterprise [is] engaged in commerce or in the production of goods for commerce" if it:
(i) has employees engaged in commerce or in the production of goods for commerce,
or that has employees handling, selling, or otherwise working on goods or materials
that have been moved in or produced for commerce by any person; and
(ii) is an enterprise whose annual gross volume of sales made or business done is not
less than $500,000 (exclusive of excise taxes at the retail level that are separately
stated); ....
ld. § 203(s)(1 )(A). An employee may be subject to individual coverage, enterprise coverage, or both
33 (lstCir.2007);Fernandezv. Centerplate!NBSE,441 F.3d 1006, 1009(D.C. Cir.2006);Maravilla
v. NgocAnhRest.. Inc., 1:16-CV-427(LMB/MSN), 2016 WL 6821090, at *3 (E.D. Va. Nov. 17,
2016) (unpublished); Gilbert v. Freshbikes. LLC, 32 F. Supp. 3d 594, 600-01 (D. Md. July 9, 2014)
(unpublished); Rodriguez v. Diego's Rest.. Inc., 619 F. Supp. 2d 1345, 1350 (S.D. Fla. 2009). This
court's analysis of the FLSA coverage issue, however, would be the same whether FLSA coverage
is a jurisdictional requirement or merely an element of an FLSA claim. The only difference would
be whether the court dismissed Velasquez's FLSA claim for lack of subject-matter jurisdiction or
for failure to prove an element of his claim. See Arbaugh, 546 U.S. at 510-16.
7
individual and enterprise coverage. See Josendis, 662 F.3d at 1299.
An employee may establish individual coverage by proving that he was directly and regularly
engaged in commerce or in the production of goods for commerce. See id. at 1315. "[W]hether an
employee is engaged 'in commerce' within the meaning of [the FLSA] is determined by practical
considerations, not by technical conceptions. The test is whether the work is so directly and vitally
related to the functioning ofan instrumentality or facility of interstate commerce as to be, in practical
effect, apartofit,ratherthanisolatedactivity." Mitchell v. C.W. Vollmer&Co., 349U.S. 427,429
(1955)(citations omitted); seeErgashov, 680 F. App'x at 162-63; Josendis, 662 F.3dat 1316. The
scope of activities that are "in commerce" under the FLSA is narrower than the scope of activities
~e federal government may regulate under the Commerce Clause.
See Mitchell v. H.B. Zachry Co.,
362 U.S. 310, 313 (1960); Josendis, 66:2 F.3d at 1316. The FLSA does not permit courts to "absorb
by adjudication essentially local activities." 10 E. 40th St. Bldg. v. Callus, 325 U.S. 578, 582-83
(1945). "[E]mployees who handle goods after acquisition by a merchant for general local disposition
are not" engaged in commerce under the FLSA. McLeod v. Threlkeld, 319 U.S. 491, 494 (1943);
see Josendis, 662 F.3d at 1316. Employees at restaurants who cook or serve food for customers
within a single state are not engaged in commerce or the production of goods for commerce under
the FLSA.
See,~'
'
Martinez v. Palace, 414 F. App'x 243,245-47 (11th Cir. 2011) (per curiam)
(unpublished); Yan v. Gen. Pot. Inc., 78 F. Supp. 3d997, 1003 (N.D. Cal. 2015);Lopezv. Top Chef
lnv.. Inc., No. 07-21598-CIV, 2007 WL 4247646, at *2 (S.D. Fla. Nov. 30, 2007) (unpublished); Si
v. CSM lnv. Corp., No. C-06-7611 PVT, 2007 WL 1518350, at *3 (N.D. Cal. May 22, 2007)
(unpublished); Russell v. Cont'l Rest.. Inc., 430 F. Supp. 2d 521, 525-27 (D. Md. 2006); Xelo v.
Mavros, No. 03-CV-3665 (NG)(MDG), 2005 WL 2385724, at *4-5 (E.D.N.Y. Sept. 28, 2005)
(unpublished); Lamont v. Frank Soup Bowl. Inc., No. 99 Civ. 12482(JSM), 2001 WL 521815, at *2
8
(S.D.N.Y. May 16, 2001) (unpublished); see also Josendis, 662 F.3d at 1315-17; Thome v. All
Restoration Servs .. Inc., 448 F.3d 1264, 1266-68 (11th Cir. 2006).
Velasquez does not offer evidence in the record that, while working at the Restaurant, he was
directly and regularly "engaged in commerce or in the production of goods for commerce" within
the meaning of the FLSA. Thus, individual coverage does not apply. See Martinez, 414 F. App'x
at 245-47; Ym!, 78 F. Supp. 3d at 1003; Lopez, 2007 WL 4247646, at *2; Si, 2007 WL 1518350,
at *3; Russell, 430 F. Supp. 2d at 525-27; Lamont 2001 WL 521815, at *2; see also Josendis, 662
F.3d at 1315-17; Thome, 448 F.3d at 1266-68.
As for enterprise coverage, a plaintiff must prove that his employer: "(i) has employees
engaged in commerce or in the production of goods for commerce, or ... has employees handling,
selling, or otherwise working on goods or materials that have been moved in or produced for
commerce by any person; and (ii) is an enterprise whose annual gross volume of sales made or
business done is not less than $500,000." 29 U.S.C. § 203(s)(l)(A); see Josendis, 662 F.3d at 1317.
Velasquez's statement of material facts does not cite any competent evidence supporting either
prong of enterprise coverage. Furthermore, Velasquez's memorandUJ:Il in support of his motion for
summary judgment does not mention either prong of enterprise coverage. Rather, in replying to
defendants' argument that he failed to establishFLSA coverage, Velasquez's reply briefly references
an alleged May 2014 North Carolina Department of Labor report concerning "Salsa & Beer, Inc.
DBA Salsa and Beer" ("SBP') and alleged 2012 and 2016 North Carolina Alcoholic Beverage
Commission (''NCABC") reports concerning SBI's business, which allegedly show that SBI had
sales of over $500,000.00 in some years. See [D.E. 49-3] 2-7; [D.E. 51-2].
Velasquez has failed to prove enterprise coverage. See Josendis, 662 F .3d at 1317 (a plaintiff
cannot rely on "conjectUre and speculation" to establish enterprise coverage). First, Velasquez has
9
not presented any competent evidence demonstrating that defendants' employees engaged in
I
commerce, the production of goods for commerce, or handled, sold, or otherwise worked on goods
or materials that have been moved in or produced for commerce. Although one might assume that
all restaurants employ at least one such employee, the Fourth Circuit has made clear that a court may
not make such an assumption. See Ergashov, 680 F. App'x at 163 (delivering donuts to Dunkin
Donuts stores that are "part of a national franchise is not enough to show that the Appellants were ·
engaged in interstate commerce as opposed to merely affecting it"); accord Josendis, 662 F.3d at
1317-19 (requiring evidence, not conjecture and speculation, to prove enterprise coverage). Rather,
the Fourth Circuit requires a party to present evidence to prove each element of coverage under the
FLSA. Given the array of discovery tools available to parties engaged in civil litigation in federal
court, the Fourth Circuit's requirement is not too much to ask.
Because Velasquez has failed to prove the first element of the enterprise coverage, the court
need not address the second element. Alternatively, however, the record does not include competent
evidence that, during the relevant time period, defendants' annual gross volume of sales or business
done was $500,000.00 or more. See Josendis, 662 F.3d at 1317-19. Again, the court notes that
every party engaged in civil litigation in federal court has an array of discovery tools available.
When defendants deny in their answer that enterprise coverage exists (as defendants did in this case),
a party who asserts enterprise coverage should use the discovery tools in the Federal Rules of Civil
Procedure to obtain competent evidence to prove the second element of enterprise coverage: an
enterprise whose annual gross volume of sales made or business done is $500,000 or more. On this
record, Velasquez has failed to prove the second element of enterprise coverage. Thus, the court
lacks subject-matter jurisdiction over his FLSA claim, and that claim is dismissed. See Ergashov,
680 F. App'x at 162-63; see also Williams, 50 F.3d at 304.
10
B.
As for Velasquez's NCWHA claim, all parties are North Carolina citizens. Thus, the court
lacks diversity jurisdiction. See 28 U.S.C. § 1332(a); Clark v. Velsicol Chern. Cor;p., 944 F.2d 196,
197 (4th Cir. 1991 ). Nonetheless, the court m~y exercise supplemental jurisdiction over Velasquez's
NCWHA claim. See 28 U.S.C. § 1367(a). However, the court has dismissed Velasquez's only
federal claim and declines to exercise supplemental jurisdiction over Velasquez's NCWHA claim.
See 28 U.S.C. § 1367(c)(3); Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343,350 n.7 (1988); United
Mine Workers of Am. v. Gibbs, 383 U.S. 715,726 (1966); ESAB Grp.• Inc. v. Zurich Ins. PLC, 685
F.3d376, 394 (4thCir. 2012); Hinson v. NorwestFin. S.C.. Inc., 239F.3d611, 616 (4th Cir. 2001).
In doing so, the court notes that Velasquez's NCWHA claim involves novel issues ofNorth Carolina
law. These novel issues provide an alternative rationale for declining to exercise supplemental
jurisdiction over Velasquez's NCWHA claim. See 28 U.S. C. § 1367(c)(1 ). Accordingly, the court
dismisses without prejudice Velasquez's NCWHA claim, and he may pursue his NCWHA claim in
state court.
m.
As for Velasquez's motion to strike, Velasquez moves to strike Patino's affidavit in which
she swears that SBR "did have and does have an annual gross volume of sales made or business done
,ofless than $500,000" when SBR employed Velasquez. See [D.E. 48-1] ~ 4. Ve~asquez moves to
strike the affidavit under Rule 56 because Patino allegedly relies upon information not in the record
and because Patino allegedly based her statement on facts outside Patino's personal knowledge.
Velasquez seeks relief under Rule 56(e). Rule 56(e), however, describes what a court may
do if a party fails to properly support or address a fact when arguing for or against summary
11
judgment and does not regulate the form or content of affidavits. 4 Thus, Rule 56(e) does not help
Velasquez. Moreover, to the extent Velasquez argues that the court should strike Patino's affidavit
because it does not cite to the record, that argument fails. Rule 56(c)(1 )(A) requires a party to cite
to the record when supporting a proposition in briefing, not affidavits.
Velasquez also argues that the court should strike the affidavit because Patino's testimony
in the affidavit lacks a proper foundation. An affidavit submitted in opposition to a summaryjudgment motion must contain admissible evidence, and the affiant must have personal knowledge
of the information contained in the affidavit. See Evans, 80 F.3d at 962; Fed. R. Civ. P. 56(c)(4).
I
Velasquez argues that Patino's affidavit fails this test. In support, Velasquez argues that Patino
stated that she was "familiar with the books and records of' SBR, but failed to attach those records
to her affidavit.
The fact at issue is SBR' s gross volume of sales or business done during the relevant period.
Patino's affidavit constitutes admissible evidence concerning SBR's gross volume of sales or
business done during the relevant period. She asserts personal knowledge, and it is reasonable to
infer that a corporation's vice president would know, based on personal knowledge, whether the
corporation's annual gross volume of sales or business done for a given period exceeded certain
round-number thresholds like $500,000.00. Cf. Evans, 80 F.3d at 962 n.6. In order for the court to
consider the affidavit, Patino did not have to attach SBR's business records to the affidavit. Thus,
the court rejects this argument.
Velasquez also argues that the court should strike Patino's affidavit because it contains false
information. In support, Velasquez cites the 2012 and 2016 NCABC reports and the 2014 NCDOL
4
Before an amendment to Rule 56 in 2010, subsection (e) contained rules regarding the form
of affidavits. See Evans v. Techs. Awlications & Serv. Co., 80 F.3d 954,962 (4th Cir. 1996).
12
letter concerning SBI. Patino's affidavit referred to SBR' s annual gross volume of sales or business
done. For purposes ofthe motion to strike, evidence ofSBI' s gross volume of sales or business done
is not necessarily evidence of SBR's gross volume of sales or business done. Simply put, on this
record, the court declines to find that Patino's affidavit contains false information. Thus, the court
denies the motion to strike.
As for Velasquez's motion for sanctions, he seeks sanctions under Rule 11, Rule 56(h), and
28 U.S.C. § 1927 in response to defendantsfilingofPatino's affidavit. See [D.E. 54-1]. Velasquez
contends that the Patino affidavit contained knowingly false information-that SBR's annual gross
volume of sales or business done during the relevant period was less than $500,000.00-and again
cites the alleged NCABC and NCDOL documents. This argument, however, fares no better than the
argument in support of the motion to strike. Thus, the court denies the motion for sanctions.
IV.
In sum, the court DENIES plaintiff's motion for summary judgment [D.E. 40], DENIES
plaintiff's motion to strike [D.E. 49], and DENIES plaintiff's motion for sanctions [D.E. 54].
Plaintiff's FLSA claim is DISMISSED for lack of subject-matterjurisdiction. The court DECLINES
to exercise supplemental jurisdiction over plaintiff's NCWHA claim and DISMISSES witliout
prejudice the NCWHA claim. Plaintiff may seek relief under the NCWHA in state court. The clerk
shall close the case.
SO ORDERED. This 2.8 day of September 2017.
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