BOYINGTON v. PERCHERON FIELD SERVICES, LLC

Filing 263

MEMORANDUM OPINION & ORDER - upon consideration of Plaintiffs' Motion for Partial Summary Judgment (ECF No. 193 ) and for the reasons set forth in the Memorandum Opinion accompanying this order, it is HEREBY ORDERED as follows: 1. Plaintiffs&# 039; Motion for Partial Summary Judgment (ECF No. 193 ) is GRANTED to the extent it asks for summary judgment regarding the judicial admission made by Defendant and precludes the affirmative defense of the existence of an overtime exemption prior to December 31, 2014. However, this grant of summary judgment applies only to Eric Boyington and the current opt-in Plaintiffs. 2. Plaintiffs' Motion for Partial Summary Judgment (ECF No. 193 ) is also GRANTED in regard to the Second Affirmative Defense of the Amended Answer and dismisses the Second Affirmative Defense with prejudice. 3. Plaintiffs' Motion for Partial Summary Judgment is DENIED in all other regards, and as more fully stated in said Memorandum Opinion & Order. Signed by Judge Kim R. Gibson on 11/8/2017. (dlg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
ERIC BOYINGTON, on behalf of himself
and all others similarly situated,
Plaintiffs,
v.
PERCHERON FIELD SERVICES, LLC,
Defendant.

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Case No. 3:14-cv-90
JUDGE KIM R. GIBSON

MEMORANDUM OPINION
I.

Introduction
Pending before the Court is the Motion for Partial Summary Judgment (ECF No. 193)

filed by Plaintiff Eric Boyington (“Boyington”), on behalf of himself and others similarly
situated. This Motion has been fully briefed by all parties (see ECF Nos. 194, 195, 196, 197, 205,
206, 207, 208, 209, 210) and is ripe for disposition.
This case is a hybrid collective/class action brought under the Fair Labor Standards Act
(“FLSA”), 29 U.S.C. §§ 201-19, and the Pennsylvania Minimum Wage Act (“PMWA”), 43 Pa.
Cons. Stat. §§ 333.101-15. (ECF No. 1 ¶ 1.) Plaintiffs are current and former Right of Way
Agents (“ROW Agents”) 1 for Defendant Percheron Field Services, LLC (“Percheron”). Plaintiffs
allege that Percheron improperly classified them as overtime-exempt employees and, thus, seek
backpay for non-payment of overtime wages, liquidated damages, and reasonable attorneys’
fees and costs under the FLSA. (Id. ¶¶ 1, 75.)

1

ROW Agents provide support devices for projects such as land acquisitions and surveys.

In their Motion for Partial Summary Judgment, Plaintiffs ask the Court to enter
judgment as a matter of law on two discrete issues: (1) whether Defendant made a judicial
admission that Defendant misclassified the ROW Agents as overtime exempt prior to December
31, 2014 and (2) whether the Second Affirmative Defense asserted in Defendant’s Amended
Answer must be dismissed under the law of the case doctrine. For the reasons that follow,
Plaintiffs’ Motion for Partial Summary Judgment is GRANTED IN PART and DENIED IN
PART.
II.

Jurisdiction and Venue
The Court has jurisdiction over Plaintiffs’ FLSA claims under 28 U.S.C. § 1331 and

supplemental jurisdiction over their related state law claims under 28 U.S.C. § 1367(a). Because
a substantial part of the events underlying this case occurred in Altoona, Pennsylvania in the
U.S. District Court for the Western District of Pennsylvania, venue is proper in this District
pursuant to 28 U.S.C. § 1391(b)(2).
III.

Relevant Background2
The present Motion for Partial Summary Judgment was filed on October 14, 2016. (ECF

No. 193.) Briefing concluded on this Motion on November 28, 2016. (See ECF Nos. 194, 195,
196, 197, 205, 206, 207, 208, 209, 210.)
This case has featured frequent and contentious disputes. Most relevant to the present
Motion, the Court denied Defendant’s Motion to Enforce Settlement Agreement (ECF No. 64)
by Memorandum Opinion and Order of June 14, 2015. (ECF No. 96.) Shortly thereafter, on July

Due to the extensive procedural history in this case and the parties’ familiarity with the case, this
background is narrowly constrained to the information relevant to deciding the present Motion for
Partial Summary Judgment.

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13, 2015, Defendant filed its Motion for Reconsideration or, in the Alternative, for Permission to
File an Interlocutory Appeal (ECF No. 111), which the Court denied by Memorandum Opinion
and Order of March 24, 2016. (ECF No. 141.)
The Court granted Plaintiffs’ Motion to Conditionally Certify an FLSA Collective and to
Facilitate Notice (ECF No. 45) by Memorandum Opinion and Order of June 16, 2015. (ECF No.
97). However, Plaintiffs’ Motion for Class Certification (ECF No. 224) filed on March 31, 2017—
but not scheduled to be fully briefed until November 15, 2017 (see ECF No. 249)—remains
pending before the Court.
Defendant also filed two motions to strike (ECF Nos. 253, 254) on October 16, 2017,
asking the Court to strike numerous declarations submitted by Plaintiffs in support of their
Motion for Class Certification. (ECF No. 224). These motions to strike—the disposition of
which could affect the Court’s ruling on Plaintiffs’ Motion for Class Certification (ECF No.
224)—await responsive briefing by Plaintiffs and are not yet ripe for disposition.
IV.

Discussion
Plaintiffs’ Motion for Partial Summary Judgment and accompanying briefs move for

summary judgment on two matters. (See ECF Nos. 193, 194, 208.) First, Plaintiffs ask the Court
to hold that, pursuant to the admissions of Defense Counsel, no overtime exemptions apply to
any of the ROW Agents subject to this lawsuit for any overtime damages through December 31,
2014. (See ECF No. 194 at 1.) Second, Plaintiffs ask the Court to dismiss the Second Affirmative
Defense asserted in Defendant’s Amended Answer on the basis of the law of the case doctrine.
(See id.)
The Court addresses each of these requests in turn.

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A. Defense Counsel’s Admission Regarding Overtime Exemptions
1. Plaintiffs’ Arguments
Plaintiffs first argue that Defendant “has unequivocally admitted that no overtime
exemptions apply to the opt-in plaintiffs” because of a judicial admission made by Defense
Counsel. (Id. at 3.) At an oral argument before the Court on July 13, 2016, Defense Counsel
stated:
The defendant has waived its affirmative defenses associated with the
classification of these individuals as exempt during the time period when they
were paid on a day-rate basis. That’s originally what this case was about. These
folks were classified as exempt, but it was admitted that they were not paid a
fixed salary for all hours worked through the end of 2014. And, as a result of
that, Percheron acknowledges that it is liable for misclassification prior to
December 31st, 2014, leaving the key factual dispute for this whole litigation to
be the question of hours worked.
(ECF No. 196-1 at 11:8-17.) On the basis of this statement by Defense Counsel, Plaintiffs ask this
Court to “rule that no overtime exemptions under the FLSA or PMWA apply to any of the
Percheron ROW Agents, either in the FLSA collective action or in the proposed Rule 23 class, for
any of the time periods worked through 3 December 31, 2014.” (ECF No. 194 at 3.)
Plaintiffs also specifically assert that this judicial admission by Defense Counsel should
apply to all potential Rule 23 class members—not only to Boyington—because such potential
Rule 23 class members must be similarly situated to Boyington, must satisfy the typicality and
other requirements of Rule 23, and must necessarily have the same employment and pay
characteristics. (Id. at 4.) Lastly, Plaintiffs argue that, if the Court grants summary judgment as

The Court notes that Defense Counsel’s statement at oral argument used the phrase “prior to December
31st, 2014”—not “through December 31, 2014.” (ECF No. 196-1 at 11:8-17.)

3

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to Boyington, such a judgment would also apply to other ROW Agents under the doctrine of
issue preclusion. (ECF No. 208 at 3-4.)
2. Defense Counsel’s Verbal Admissions Are Binding on Defendant
As a preliminary consideration, the Court must determine whether the verbal
admissions made by Defense Counsel at an oral argument may constitute a binding judicial
admission.
Case law on this issue from the U.S. Court of Appeals for the Third Circuit and other
Circuits is clear that an admission of counsel is binding on his or her client as long as such
admissions are unequivocal. See Glick v. White Motor Co., 458 F.2d 1287, 1291 (3d Cir. 1972);
accord McCaskill v. SCI Mgmt. Corp., 298 F.3d 677, 680 (7th Cir. 2002) (holding that counsel’s
verbal admission at oral argument as to the enforceability of an agreement was a binding
judicial admission just like any other formal concession made during the course of
proceedings); Kohler v. Inter-Tel Techs., 244 F.3d 1167, 1170 n.3 (9th Cir. 2001) (holding that
counsel’s verbal admission at oral argument that the plaintiff failed to meet her burden of
establishing diversity jurisdiction was a binding admission on the plaintiff); Halifax Paving, Inc.
v. United States Fire Ins. Co., 481 F. Supp. 2d 1331, 1336 (M.D. Fla. 2007) (“Statements made by an
attorney during oral argument are binding judicial admissions and may form the basis for
deciding summary judgment.”).
Defendant does not contest this case law or the general principle that an unequivocal
admission of counsel at oral arguments is binding on his or her clients. (See ECF No. 205.)
Thus, the Court easily holds that unequivocal oral admissions made by a party’s counsel at oral
argument are binding on that party.

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Furthermore, even beyond Defense Counsel’s verbal admission at oral argument, in
Defendant’s Response to Plaintiffs’ Concise Statement of Material Facts and Defendant’s
Concise Statement of Other Material Facts (ECF No. 206), Defendant admits both that it
misclassified Boyington as an exempt employee under the FLSA and PMWA and that it
misclassified ROW Agents as exempt employees under the FLSA and PMWA. (See id. at ¶¶ 4,
7.) Therefore, Defendant has clearly and unequivocally made multiple formal concessions that
it misclassified Boyington and other ROW Agents as exempt employees under the FLSA and
PMWA. And, by Defense Counsel’s unequivocal admission, “Percheron acknowledges that it is
liable for misclassification prior to December 31st, 2014, leaving the key factual dispute for this
whole litigation to be the question of hours worked.” (ECF No. 196-1 at 11:8-17.)
3. Rule 56 Permits the Court to Enter Summary Judgment on
Defendant’s Admission
While Defendant does not dispute the general principle that an unequivocal admission
by counsel at oral arguments is binding on his or her clients, Defendant argues that Rule 56
does not permit the Court to enter summary judgment as to Defendant’s admission. (See ECF
No. 205 at 1-3.)
Citing 29 U.S.C. § 216(b), Mell v. GNC Corporation, No. 10-cv-945, 2010 WL 4668966, at *5
(W.D. Pa. Nov. 9, 2010), and Rummel v. Highmark, Inc., Civil Action No. 3:13-cv-97, 2013 WL
6055082, at *3 (W.D. Pa. Nov. 15, 2013), Defendant states that FLSA and PMWA require a
plaintiff to allege that: (1) the defendant engaged in commerce as defined by the FLSA, (2) the
plaintiff was an employee as defined by the FLSA, and (3) the plaintiff worked more than forty
hours in a week but was not paid overtime compensation for the hours in excess of forty. (ECF

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No. 205 at 2.) In reviewing these elements, Defendant concludes that “FLSA and PMWA do not
require a plaintiff to prove the absence of overtime exemptions (i.e., ‘misclassification’) as an
element of his overtime claim.” (Id.)
Therefore, because Defendant concludes that misclassification of Plaintiffs as overtime
exempt is not one of these three elements, Defendant argues that “the presence or absence of
potentially-applicable ‘exemptions’ to the overtime provisions of the FLSA and/or PMWA are
simply not material to whether Plaintiff has established a prima facie case.” (Id.) In essence,
Defendant believes that Plaintiffs’ request for summary judgment goes beyond the
authorization of Rule 56 because Plaintiffs ask for judgment on something that is not a “claim”
or “defense” or any “part” of a “claim” or “defense.” (Id. at 1.) The Court disagrees with
Defendant’s narrow interpretation and application of Rule 56 and holds that Rule 56 authorizes
the grant of partial summary judgment here.
First, Defendant can scarcely claim that whether “Percheron acknowledges that it is
liable for misclassification prior to December 31st, 2014, leaving the key factual dispute for this
whole litigation to be the question of hours worked” (ECF No. 196-1 at 11:8-17) is not relevant to
this case. This admission may not squarely or fully satisfy one of the three elements of a cause
of action under the FLSA or PMWA, but the tendency of this admission to make a finding
regarding these elements more or less probable is clear to the Court. While Defendant may
dispute the weight and importance of this admission, this admission is still a material fact in
assessing the elements of the causes of action in this case, the credibility and weight of other
evidence, and the defenses raised by Defendant.

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Second, while Defendant correctly notes that its Amended Answer no longer asserts the
affirmative defense that an overtime exemption is applicable to Boyington and the ROW Agents
prior to December 31, 2014 (see ECF No. 205 at 2-3), the failure to raise the affirmative defense of
the applicability of an overtime exemption in its Amended Answer does not necessarily
foreclose Defendant’s ability to raise this defense in the future. See Antiskay v. Contemporary
Graphics & Bindery, Inc., Civil No. 11-7579, 2013 WL 6858950, at *11-*22 (D.N.J. Dec. 26, 2013). In
Antiskay, the U.S. District Court for the District of New Jersey concluded that the defendant was
allowed to seek summary judgment on FLSA exemption even though the applicability of an
overtime exemption was not raised as an affirmative defense in the defendant’s answer. See id.
The District of New Jersey first observed that the Third Circuit had not yet ruled on “the precise
issue of whether a[n] FLSA exemption affirmative defense is waived if it is not specifically pled
in the answer.” Id. at *16-*17. The District of New Jersey then decided to follow the decisions of
the two U.S. Courts of Appeals that have decided this issue—both of which held that “the
technical failure to plead an FLSA exemption defense explicitly in the pleadings is not fatal to
the employer’s ability to assert it in the litigation and have the Court reach the merits of the
defense.” Id. at *17 (citing Schmidt v. Eagle Waste & Reclycing, Inc., 599 F.3d 626, 632 (7th Cir.
2010); Bergquist v. Fidelity Info. Servs., Inc., 197 F. App’x 813, 815-16 (11th Cir. 1988)).
While the Court does not now hold that a party does not waive the affirmative defense
of an overtime exemption even if that defense is not raised in the party’s answer, 4 the Court

Instead, if an un-pleaded affirmative defense such as the overtime exemption were raised at a later time,
the Court would apply the Third Circuit’s established standard, i.e., the Court would focus on whether
the party against whom this affirmative defense is latently raised would suffer undue prejudice and
unfair surprise and whether that party had the opportunity to rebut that defense or to alter litigation

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recognizes that Defendant could attempt to resurrect the affirmative defense of an overtime
exemption at a later time and has a reasonable basis in the case law cited supra for doing so.
Moreover, despite withdrawing the affirmative defense of an overtime exemption originally
asserted in its Answer from its Amended Answer (compare ECF No. 36 at 13 with ECF No. 136),
Defendant’s

Amended

misclassification.

Answer

continues

to

deny

Plaintiffs’

allegations

(See ECF No. 32 ¶¶ 31, 44; ECF No. 136 ¶¶ 31, 44.)

regarding

Especially given

Defendant’s continued denials of the underlying facts in its Amended Answer and Defendant’s
opposition to the present Motion for Partial Summary Judgment despite Defendant’s repeated
and sometimes colorful 5 assertions as to the irrelevancy and unimportance of the issue, it
certainly is not unreasonable to seek summary judgment as to a defense that has been
unequivocally precluded by Defendant’s judicial admissions. Granting summary judgment on
this judicial admission simplifies the litigation and, as Defense Counsel stated in Defendant’s
judicial admission, 6 narrows the future considerations of this case to the issues that are actually
in dispute, e.g., “the question of hours worked.” (ECF No. 196-1 at 11:8-17.)
Federal Rule of Civil Procedure 56(a) expressly permits a party to “move for summary
judgment, identifying each claim or defense—or the part of each claim or defense—on which
summary judgment is sought.” Fed. R. Civ. P. 56(a). Clearly, this judicial admission directly

strategy accordingly. See In re Sterten, 546 F.3d 278, 285 (3d Cir. 2008) (citing Robinson v. Johnson, 313 F.3d
128, 134-35 (3d Cir. 2002)).
5 Beyond asserting that this issue is “irrelevant,” “not material,” “a nonissue,” and “does not pertain” to
any element of a claim or defense, Defendant also colorfully argues to the Court that “Plaintiff may as
well have moved for summary judgment on the question of whether the sun comes up in the morning.”
(ECF No. 205 at 3.)
6 “And, as a result of that, Percheron acknowledges that it is liable for misclassification prior to December
31st, 2014, leaving the key factual dispute for this whole litigation to be the question of hours worked.”
(ECF No. 196-1 at 11:8-17.)

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precludes the defense of an overtime exemption and, thus, granting summary judgment is
appropriate under Rule 56. Therefore, the Court grants Plaintiffs’ Motion for Partial Summary
Judgment to the extent it asks for summary judgment regarding the judicial admission made by
Defendant and precludes the affirmative defense of the applicability of an overtime exemption
prior to December 31, 2014.

However, this grant of summary judgment applies only to

Boyington and the opt-in plaintiffs properly and currently before the Court. 7
4. The Court Will Not Render an Advisory Opinion as to Whether
Defendant’s Admissions Are Applicable to All Potential Rule 23
Class Members or Whether Issue Preclusion Hypothetically Applies
Plaintiffs also ask the Court to extend this grant of summary judgment regarding
Defense Counsel’s admissions to all ROW Agents and all potential Rule 23 class members.
(ECF No. 194 at 4-5.) Additionally, Plaintiffs argue that, if the Court grants summary judgment
as to Boyington, such a judgment would also apply to other ROW Agents under the doctrine of
issue preclusion. (ECF No. 208 at 3-4.) The Court denies both of these requests.
The Court will not preemptively rule on issues and parties not properly and currently
before the Court. Article III of the U.S. Constitution restricts the power of federal courts to
“Cases” and “Controversies.” U.S. Const. art. III, § 2, cl. 1. Federal courts may not “decide
questions that cannot affect the rights of litigants in the case before them” or give “opinion[s]
advising what the law would be upon a hypothetical state of facts.” Chafin v. Chafin, 568 U.S.
165, 171-72 (2013) (quoting Lewis v. Continental Bank Corp., 494 U.S. 472, 477 (1990)). Plaintiffs
ask the Court to apply our current holding to potential parties not yet litigants in this case and

That is, those who filed and did not withdraw written consent to join this action as party plaintiffs
pursuant to 29 U.S.C. § 216(b).

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to decide whether issue preclusion hypothetically applies to all ROW Agents any time this issue
is raised in the future. The Court cannot and will not do so.
B. The Second Affirmative Defense of the Amended Answer
1. Plaintiffs’ Argument
Plaintiffs next argue that Defendant’s Second Affirmative Defense, which contends that
there is “a binding settlement agreement” with Boyington, has already been disposed of by the
Court’s Memorandum Opinion and Order of June 15, 2015. (ECF No. 194 at 5.) Plaintiffs argue
that, under the law of the case doctrine, the Court’s prior decision lasts the duration of the case
and precludes Defendant from re-litigating the issue. (Id.)
The Court agrees with Plaintiffs.
2. The Law of the Case Doctrine
Under the law of the case doctrine, “when a court decides upon a rule of law, that
decision should continue to govern the same issues in subsequent stages in the same case.”
ACLU v. Mukasey, 534 F.3d 181, 187 (3d Cir. 2009) (quoting Christianson v. Colt Indus. Operating
Corp., 486 U.S. 800, 816 (1988)). Courts have developed the law of the case doctrine “to maintain
consistency and avoid reconsideration of matters once decided during the course of a single
continuing lawsuit.” Bellevue Drug Co. v. CaremarksPCS (In re Pharm. Benefit Managers Antitrust
Litig.), 582 F.3d 432, 439 (3d Cir. 2009).
The law of the case doctrine provides that decisions of law issued in the course of a legal
action should not be revisited or overturned unless there are “extraordinary circumstances,”
namely that the initial decision was “clearly erroneous and would make a manifest injustice,”

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the availability of new evidence, the announcement of a new supervening law, the desire to
clarify an earlier ambiguous ruling, or the need to avoid an unjust result. See id.
3. The Second Affirmative Defense is Barred by the Law of the Case
Defendant filed its Motion to Enforce Settlement Agreement on November 12, 2014.
(ECF No. 64.) The Court denied this Motion by Memorandum Opinion and Order of June 14,
2015. (ECF No. 96.) Both parties have expended considerable effort to construe the exact
wording of that Memorandum Opinion and Order to their benefit. In particular, Defendant has
excerpted specific portions of the Court’s decision that seemingly align with Defendant’s
arguments. The Court will not spend its time responding to the parties’ various interpretations
and out-of-context quotations of this prior decision because the Court’s decision on Defendant’s
Motion to Enforce Settlement Agreement speaks for itself. (See id.) However, for the purposes
of resolving the present Motion for Summary Judgment, the Court concludes that its prior
decision unambiguously held that the purported settlement agreement was invalid as a matter
of law. Thus, the law of the case doctrine precludes re-litigation of this issue, see Bellevue, 582
F.3d at 439, and the Court holds that the Second Affirmative Defense is dismissed with
prejudice.
While the parties seek to construe various specific excerpts of the Court’s prior decision
to their advantage, the holding of the Court’s prior decision is clear: the purported settlement
agreement lacked sufficiently definite terms to constitute an enforceable contract. (See ECF No.
96.)

The Court clearly held that “[t]he precise terms of the agreement allegedly reached

between Plaintiff and Defendant are not sufficiently definite, and it appears to the Court that

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Defendant attempted to subvert the class action by offering to settle the case before giving the
Court a chance to rule on the motion to certify the class conditionally.” (ECF No. 96 at 7.)
The Court considered both Asa Bowers, the Chief Executive Officer of Defendant’s
parent entity, and Boyington’s sworn declarations and, regardless of the two declarations’
opposing views on whether there was mutual assent to the purported settlement agreement,
neither declaration established sufficiently definite terms to constitute a valid settlement
agreement as a matter of law.

(Id. at 5.)

Accordingly, the Court unequivocally stated,

“Defendant’s motion to enforce the settlement shall be denied because the Court is not satisfied
that Defendant entered into a binding agreement with Plaintiff on October 31, 2014.” 8 (Id.)
Defendant offers two final arguments in favor of re-re-litigation 9 of this issue. First,
Defendant argues that it should be permitted to develop “facts through discovery to support its
assertion that there was a binding and enforceable settlement agreement.” (ECF No. 205 at 7.)
In support of this argument, Defendant cites a number of cases that it suggests stand for the
proposition that the law of the case doctrine does not preclude re-litigation of an issue when it
was decided on an undeveloped and incomplete factual record that can be subsequently

The Court also equated Defendant’s purported settlement to the “picking off” scenario in Weiss v. Regal
Collections, 385 F.3d 337, 349 (3d Cir. 2004) because “Defendant used the offer of settlement here to thwart
the class action before the certification question could be decided by this Court.” (ECF No. 96 at 6-7.) The
Court specified that “Defendant’s action in making an offer of settlement was an impermissible attempt
to settle this case before giving the Court an opportunity to rule on the motion to certify the class
conditionally.” (Id. at 7.) However, as correctly noted by Defendant, in the Court’s decision (ECF No.
141) on Defendant’s Motion for Reconsideration or, in the Alternative, for Permission to File an
Interlocutory Appeal (ECF No. 111), the Court later clarified that this second basis for holding that the
purported settlement agreement is invalid is largely irrelevant because the Court based its decision on the
lack of sufficient terms to the alleged settlement agreement. (ECF No. 141 at 4-5.)
9 The Court already reconsidered the enforceability of the purported settlement agreement in denying
Defendant’s Motion for Reconsideration or, in the Alternative, for Permission to File an Interlocutory
Appeal. (ECF Nos. 111, 141.)
8

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developed and completed in discovery. See Pure Power Boot Camp, Inc. v. Warrior Fitness Boot
Camp, LLC, 759 F. Supp. 2d 417, 424 (S.D.N.Y. 2010); Martaschiello v. City of Buffalo Police Dep’t,
709 F.3d 87, 97 (2d Cir. 2013); McKenzie v. BellSouth Telecomm., Inc., 219 F.3d 508, 513 (6th Cir.
2000); S.C. v. Deptford Twp. Bd. of Educ., No. 01-5127, 2006 WL 1784591, at *14 (D.N.J. June 23,
2006) (citing Lodato v. Ortiz, 314 F. Supp. 2d 379, 388 n.5 (D.N.J. 2004)); Clalit Health Serv. v. Israel
Humanitarian Found., 385 F. Supp. 2d 392, 398 n.8 (S.D.N.Y. 2005); Krys v. Aaron, 106 F. Supp. 3d
472, 480-81 (D.N.J. 2015); United States v. Richardson, 583 F. Supp. 2d 694, 710 (W.D. Pa. 2008);
Williams v. Hilton Group, PLC, 216 F. Supp. 2d 324, 331 (W.D. Pa. 2003).
All of the cited cases are distinguishable from the present case. Unlike our decision on
the enforceability of this purported settlement agreement, many of the cases cited by Defendant
involved initial decisions on motions to dismiss or discovery motions and were made under the
assumption that discovery would uncover additional facts upon which a further ruling could be
made. See Pure Power, 759 F. Supp. 2d at 425 (holding that the law of the case doctrine did not
apply because the issue was decided in the context of a discovery issue before the substantive
claims were before the court); Maraschielleo, 709 F.3d at 97 (reconsidering a decision that was
made solely on the basis of the allegations in the complaint); McKenzie, 219 F.3d at 513 (holding
that a prior appellate decision that a complaint was improperly dismissed for lack of subject
matter jurisdiction did not act as law of the case in a subsequent summary judgment motion on
remand); Clalit, 385 F. Supp. 2d at 398 n.8 (holding that a prior decision on a motion to dismiss
as to the intention of the testator was not binding on a decision on a motion for summary
judgment). The denial of a motion to dismiss based only on the allegations of the Complaint is
easily distinguishable from our holding, which was based on sworn declarations and made as a

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matter of law, 10 that “[t]he precise terms of the agreement allegedly reached between Plaintiff
and Defendant are not sufficiently definite.” (ECF No. 96 at 7.)
The remaining cases cited by Defendant are likewise inapposite. See S.C. Deptford, 2006
WL 1784591, at *41 (holding that the prior decision was clearly erroneous); Richardson, 583 F.
Supp. 2d at 710 (holding that the law of the case doctrine was applicable); Williams, 216 F. Supp.
2d at 331 (holding that the issue asserted was not directly addressed in the prior decision).
Defendant hopes to use this latter group of cases to show that, even if the law of the case
doctrine applies, the Court can still review our prior judgment because of the “extraordinary
circumstance” of new evidence. (ECF No. 205 at 8-9.) However, Defendant fails to identify any
newly discovered evidence. To the contrary, Defendant, without any explanation, asserts that
“there would be new evidence surrounding the settlement agreement if Defendant were
allowed to pursue discovery on this issue.” (Id. at 9.)
The Court has already held that the purported settlement agreement is not valid due to
its insufficiently definite terms. The Court will not revisit the issue and allow further discovery.
See Wright v. New Jersey/Dep’t of Educ., 115 F. Supp. 3d 490, 497 (D.N.J. 2015) (holding that
discovery on a jurisdictional challenge was not required where plaintiff did not demonstrate
“even a possibility that discovery would uncover facts” that would establish the issue). As in
Wright, Defendant has not identified any way in which discovery would change the outcome of
the Court’s ruling or change the sworn declarations upon which the Court made its decision.
See id.

The Court’s decision was not simply a preliminary ruling based on allegations in

See Am. Eagle Outfitters v. Lyle & Scott Ltd., 584 F.3d 575, 582 (3d Cir. 2009) (stating that whether terms of
a purported contract are sufficiently definite is a question of law).

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pleadings. Rather, the Court decided that the purported settlement agreement was not
enforceable based upon sworn declarations by the only two persons privy to the alleged
settlement agreement. Furthermore, Defendant has provided no explanation as to how or why
additional discovery would alter the information provided by the declarations of Boyington or
Asa Bowers, the Chief Executive Officer of Defendant’s parent entity who made the phone calls
during which the settlement discussions took place.
After considering the sworn declarations of the only two persons participating in the
settlement discussions on the phone, the Court unambiguously held that the purported
settlement agreement is unenforceable because, as a matter of law, this purported agreement
lacks sufficiently definite terms. (See ECF No. 96.) The Court also denied Defendant’s prior
request to reconsider that ruling. (See ECF No. 141.) Under the law of the case doctrine, the
Court’s prior decision as to the lack of definite terms and unenforceability of the purported
settlement agreement was made as a matter of law and governs that same issue throughout this
case. See Mukasey, 534 F.3d at 187 (citing Christianson, 486 U.S. at 816). The Court will not
reconsider this matter that has already been decided in a prior decision and reconsidered in a
separate prior decision.

See Bellevue, 582 F.3d at 439.

Moreover, no “extraordinary

circumstances” exist to justify revisiting or overturning the Court’s prior decision. See id.
Plaintiff’s request for summary judgment as to the Second Affirmative Defense of the
Amended Answer is granted and the Second Affirmative Defense of the Amended Answer is
dismissed with prejudice.

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V.

Conclusion
For the foregoing reasons, the Court grants Plaintiffs’ Motion for Partial Summary

Judgment (ECF No. 193) to the extent that it asks for summary judgment regarding the judicial
admission made by Defendant 11 and precludes the affirmative defense of the existence of an
overtime exemption prior to December 31, 2014. However, this grant of summary judgment
applies only to Boyington and the opt-in plaintiffs who are presently litigants before the Court.
The Court also grants Plaintiffs’ Motion for Partial Summary Judgment (ECF No. 193) in
regard to the Second Affirmative Defense of the Amended Answer and dismisses the Second
Affirmative Defense with prejudice.
In any and all other regards, Plaintiffs’ Motion for Partial Summary Judgment is denied.
In particular, the Court cannot and will not preemptively decide whether Defendant’s judicial
admission regarding its misclassification of the ROW Agents as overtime exempt employees
applies to hypothetical future parties or whether issue preclusion extends the Court’s judgment
to future cases or parties.
A corresponding order follows.

That judicial admission being:
The defendant has waived its affirmative defenses associated with the classification of
these individuals as exempt during the time period when they were paid on a day-rate
basis. That’s originally what this case was about. These folks were classified as exempt,
but it was admitted that they were not paid a fixed salary for all hours worked through
the end of 2014. And, as a result of that, Percheron acknowledges that it is liable for
misclassification prior to December 31st, 2014, leaving the key factual dispute for this
whole litigation to be the question of hours worked.
(ECF No. 196-1 at 11:8-17.)
11

-17-

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
ERIC BOYINGTON, on behalf of himself
and all others similarly situated,

)
)
)

Plaintiffs,

Case No. 3:14-cv-90
JUDGE KIM R. GIBSON

)
)

v.

)

)

PERCHERON FIELD SERVICES, LLC,

)
)

Defendant.

)

ORDER
NOW, this

8+ day of November 2017, upon consideration of Plaintiffs' Motion for
h

Partial Summary Judgment (ECF No. 193) and for the reasons set forth in the Memorandum
Opinion accompanying this order, it is HEREBY ORDERED as follows:
1. Plaintiffs' Motion for Partial Summary Judgment (ECF No. 193) is GRANTED to the

extent it asks for summary judgment regarding the judicial admission made by
Defendant and precludes the affirmative defense of the existence of an overtime
exemption prior to December 31, 2014. However, this grant of summary judgment
applies only to Eric Boyington and the current opt-in Plaintiffs.
2. Plaintiffs' Motion for Partial Summary Judgment (ECF No. 193) is also GRANTED in

regard to the Second Affirmative Defense of the Amended Answer and dismisses the
Second Affirmative Defense with prejudice.
3. Plaintiffs' Motion for Partial Summary Judgment is DENIED in all other regards.

BY THE COURT:

KIM R. GIBSON
UNITED STATES DISTRICT JUDGE